In closing my prior post on Macey & Strine's new article on Citizens United, I asked "do Strine and Macey really want to deny [individuals] the opportunity to assert their religious liberty simply because they incorporated their business?"
I raise this concern because, if accepted, Macey and Strine's approach would allow the government to restart what Douglas Laycock called the shell game:
The threshold issue in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius is whether any plaintiff’s free exercise of religion is substantially burdened within the meaning of the Religious Freedom Restoration Act.
On that issue, the government’s argument is a shell game. Only the individuals have religious-liberty rights; only the corporations are regulated. And more: Even the individuals have no rights when they act or refuse to act as directors, officers, or managers of the corporation. Not only are the individuals separate persons from the corporation, but the individuals are divided into additional separate persons, depending on the capacity in which they act. This is formalism in the extreme.
Douglas Laycock, Symposium: Congress answered this question: Corporations are covered, SCOTUSblog (Feb. 19, 2014), http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-corporations-are-covered/.
The shell game thus eviscerates essential rights, as I noted in in my article, Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers (March 6, 2013). The Green Bag, Vol. 16, No. 3, Spring 2013, available at SSRN: https://ssrn.com/abstract=2229414,
Conduct that is motivated by religious belief is accepted as one of the ways in which people exercise their religious freedom, however, even when the conduct occurs in a commercial setting. ... The values protected by the religious freedom clauses of the First Amendment “have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance.” Accordingly, “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opin- ion or force citizens to confess by word or act their faith therein.”
I would feel better about Macey & Strine's project if they explained just how their approach would ensure that people conducting their business as a corporation would still find those rights protected. Or perhaps explain why the shell game isn't a concern.