A Letter to the Wall Street Journal on Hobby Lobby
William A. Klein
Dear Editor: One of the first principles I learned in law school was that the outcome of a case often turns on how the issue is stated. Your March 22/23 front page article on the Hobby Lobby case is titled “Are Businesses Entitled To Same Religious Protections as People?” As a long-time teacher of corporate law, I suggest that the article might better have been titled “Do People Lose Their First Amendment Protection When They Engage in Business?” I think most people would say, “certainly not.” And then the next question might be, “Do People Engaged in Business Lose Their First Amendment Protection If They Incorporate the Business?” For those who have adopted the modern, realist approach to law (as most of us have), and who understand the purpose and function of corporate law, the answer should be, again, “certainly not.” That does not end the discussion of whether Mr. Green’s First Amendment protection bars enforcement of the Affordable Care Act, but it does strip away some distracting conceptualism.
