Should We Mandate Disclosure of Sincerely Held Religious Beliefs?

[SecularMotion]

The Court's Hobby Lobby decision, as noted in post-decision commentary (see, e.g., Sarah Hahn's guest post earlier this week), apparently relies in part on the fact that shareholders (and, potentially, employees and other relevant constituents of the firm) know that the firm has sincerely held religious beliefs and what those beliefs mean for business operations and legal compliance. The Court does not directly address this in its opinion. Rather, the opinion includes various references to owner engagement that imply buisness owner awareness. The Court states:

• For-profit corporations, with ownership approval, support a wide variety of charitable causes . . . . (Op. 23, emphasis added)
  
  
• "So long as its owners agree, a for-profit corporation may take costly pollution-control and energy conservation measures that go beyond what the law requires." (Op. 23, emphasis added)

In making these statements and reasoning through this part of the opinion, the Court relies on state corporate law principles and allusions.

Since the Court points to state law, is the answer there? Of course, state corporate and other entity laws, unlike federal securities law, do not use disclosure as a key regulatory tool. They do, however, call for the filing of a charter to constitute the corporation and annual reports to maintain its existence (and the filing of similar chartering and annual report documents for LLPs, LPs, and LLCs). States could require mandatory disclosure of sincerely held religious beliefs in their charters or annual filings. Of course, the coordination required to have all states do that would be nearly impossible, in my view. My home state of Tennessee would, e.g., be unlikely to sign onto that, imho. Absent that, fiduciary duty law might require directors and officers to disclose the sincerely held religious beliefs of controlling owners or, as Sarah Hahn suggests (in her post referenced above), a new fiduciary duty among stockholders might require these controlling owners to disclose their sincerely held religious beliefs to their co-owners. Again, the risk of disparate decisions would be significant. Moreover, these potential state corporate/entity law disclosures all would focus on shareholder awareness. Again, no sure or comprehensive answer here.

http://lawprofessors.typepad.com/business_law/2014/07/should-we-mandate-disclosure-of-sincerely-held-religious-beliefs.html

[Warren Stupidity]

1. absolutely.

[SecularMotion]

2. Not only should we mandate the disclosure of religious beliefs by corporations

Corporations who use religious exemptions should be required to file for an exemption with proof of language from their religious texts which supports the exemption.

[Brettongarcia]

3. Probably. But?

It would seem we would need some disclosure. Otherwise, think of the kind of hidden, secret discrimination you can now get from any employer/business.

For example, you want to get birth control from a Pharmacy. But strangely, the Catholic clerk or owner engages you instead in a roundabout discussion of the virtues of celibacy. You try and try, but something seems to being going wrong, that you can't quite put your finger on. Then you apply for a job there, but are turned down; no reason given.

Disclosure might be useful. But there is a problem with mere disclosure; what if it is conceded that a hydra-headed corporate "person"/monster, with a thousand employees, a thousand heads, two thousand hands, can have a "religion"? Then of course this new terrible god would say, apply for religious tax exemption. And who knows? The religious right to adult human sacrifice?

And with all those many hands and dollars behind it, corps might just make something like that stick.

So lawyers and conservative justices like Scalia, will have just created ... another series of horrible religious monsters.

Probably therefore, we need a few strong lines drawn in the sand; warfare trenches in fact. Placed miles before the disclosure defense.

[safeinOhio]

4. The can of worms is now open and

we knew it would happen.

[Squinch]

5. VERY good point.