Whose Right and Who's Right? The US Supreme Court v. The European Court of Human Rights on Corporate Exercise of Religion

Abstract

This article contrasts the United States Supreme Court’s decision in Burwell v. Hobby Lobby Stores on corporations’ ability to exercise religion with relevant jurisprudence of the European Convention on Human Rights (“ECHR”) mechanisms — the European Court of Human Rights and the now-defunct European Commission on Human Rights. We seek to determine “whose right and who’s right?” In other words, does a corporate right to exercise religion exist? And is the Supreme Court right in recognizing that protection for for-profit entities, or is the European Court of Human Rights correct in denying it? We demonstrate that the Supreme Court sidesteps a rich body of US case law on corporate form that recognizes the separation of the corporate entity from its officers. Instead, the Supreme Court confers the owner’s beliefs onto the corporation itself, a tactic that would be useful under the associational standing doctrine but that should still not apply to Hobby Lobby. Both US law and European mechanisms’ jurisprudence could have provided valuable insights for alternative models; foremost, the distinction between non-profit and for-profit enterprises and the recognition that only corporations whose membership came together for the purpose of exercising religion — in other words non-profit religious associations — should be able to assert religious beliefs on behalf of their membership. We argue that the Supreme Court’s recognition of a corporation’s ability to exercise religion in Hobby Lobby will have negative legal consequences. We explore the decision’s potential to diminish the reproductive and healthcare rights of women and employees, legitimize discriminatory conduct by corporations towards LGBTQ individuals, and deepen ideological sorting and polarization in society.