Since they can have religious purposes, churches, charities, and parochial school all have legitimate — and legally recognized — claims to religious liberty. Why then, asks legal scholar Jonathan H. Adler, could for-profit corporations not also have religious purposes?
An individual sole proprietor — of, say, a kosher deli, to use Will’s example — would clearly be able to press a religious liberty claim, whether or not she hopes the deli will make her rich (and whether or not she commits to donate her earnings to a religious charity). Does this individual lose such rights if she incorporated? Does that somehow make her religious motivations any less sincere? Any less judicially cognizable? I can’t see how. What, then, if the deli owner formed a partnership with her equally devout brother? Would that matter? And, again, if an informal partnership would be okay, why would the adoption of a corporate form and limited liability matter?
The consequence of the “no religious liberty for corporations” position is that individuals who would like to go into business are penalized if they seek to go into business without any potential recourse, under RFRA or otherwise. The choice presented by the state is go into business or stay true to your religious beliefs. Although I suggested otherwise before, it seems to me this approach imposes a substantial burden on the exercise of religion. Whether this burden can be justified in a given case is a separate question, but the burden is there
