Churches are protected under the autonomy doctrine, which is rooted in the Religion Clauses, to ensure that they are free to define their institutional identity and mission. In more limited circumstances, many religious nonprofits also enjoy autonomy protections. Now that the Supreme Court has decided in Burwell v. Hobby Lobby Stores, Inc. that for-profit corporations are capable of religious exercise and entitled to statutory free exercise protection, this Article poses a question that is on the horizon: would it ever be plausible to extend the autonomy doctrine to a for-profit institution? This Article identifies several types of for-profits (named “religious for-profits”) that appear to deserve autonomy protection. But it concludes that they do not – not as a matter of constitutional law. This Article distinguishes religious for-profits from churches and from those religious nonprofits that warrant autonomy protection. It also notes that autonomy protection for some religious nonprofits that act like for-profits is highly contested; now is certainly not the time to expand the doctrine to include for-profits. Why is it wrong to apply the autonomy doctrine to for-profit entities? Autonomy justifies categorical exemptions, which often result in harmful consequences to specific individuals and groups. If autonomy is extended to for profits, those negative impacts will multiply in number and intensity when coupled with the massive economic power of those entities. Autonomy protections traditionally have been applied exclusively within the church-and nonprofit sector. Indeed, autonomy is reserved for juris generative communities operating under some type of consent based norms, which is not the case in the for-profit context. Finally, the expansion of autonomy to include for profits threatens to dilute the entire doctrine, which could result in the loss of protections for churches on core matters of identity and mission. Instead, this Article proposes that the best way for courts, legislators and regulators to protect the religious freedom of for-profit entities is to apply a balancing approach, which takes into account and tries to mitigate the impacts on others of any exemption granted to a religious claimant.
Angela C. Carmella,
After Hobby Lobby: The “Religious For-Profit” and the Limits of the Autonomy Doctrine,
80 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol80/iss2/6