Amicus Curiae Brief — Conestoga Wood Specialties Corp. v. Sebelius

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Nos. 13-354, 13-356

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IN THE

Supreme Court of the Gnited States 7a

FILED

KATHLEEN SEBELIUS, ET AL., JAN 22 20%

Petitioner.

OFFICE Of THE CLERK

Vv.

HOBBY LOBBY STORES, INC., ET AL.,

Respondents,

CONESTOGA WOOD SPECIALTIES CORP., ET AL..,

Petitioners,

Vv.

KATHLEEN SEBELIUS, ET AL.,

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Third Circuit and Tenth Circuits

BRIEF OF AMICUS CURIAE 9 ACADEMIC

INSTITUTIONS AND 27 COMPARATIVE LAW

AND RELIGION SCHOLARS IN SUPPORT OF

HOBBY LOBBY AND CONESTOGA, ET AL.

W. COLE DURHAM JR.

Counsel of Record

ELIZABETH A. CLARK

BRETT G. SCHARFFS

INTERNATIONAL CENTER FOR LAW

AND.RELIGION STUDIES AT

BRIGHAM YOUNG UNTVERSITY

J. REUBEN CLARK LAW SCHOOL

452 JRCB

Provo, Utah 84602

(801) 422-6842

durhamc@law.byu.edu

Counsel for Amicus Curiae

ee en a TT TL ET EE,

Vii SON-E PES PeintinG CO .inc. — (202) 789-0096 ~ WasrHincTon, 0 C.20002' 0° Tae ry

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TABLE OF CONTENTS

TABLE OF AUTHORITIBEG...................0000s-es000

INTEREST OF AMICUS CURIAE................22.004-

SUMMARY OF THE ARGUMENT ....................

Il.

Ill.

International Norms and_ Tribunals

Repeatedly Recognize that Religious

Freedom has a Collective Dimension.......

International Agreements Protect

Collective Aspects of Religious

National Courts and International

Tribunals Protect the Collective

Aspects of Religious Freedom .............

Foreign Courts and Legislation Protect

For-Profit Corporate Entities’ Exercise of

I Sclasissiciatnddiecuadutiiniitemamabbeiieatnaabaiiaaiais

Numerous Courts Have Recognized

That For-Profit Entities have Funda-

ee HIE shtaiatihskanhintinsenstiaiiinisiniasiins

Foreign Courts Permit Commercial

Entities to Claim Religious Rights .....

Foreign Constitutional and Legis-

lative Norms Support For-Profit

Entities’ Religious Claims...................

International Trends Emphasize For-

Profit Entities’ Corporate Conscience ......

(i)

‘i

TABLE OF CONTENTS—Continued

a. International Actors and Norms

Stress the Importance and Breadth of

Corporate Conscience ................s2000000+-

b. There is Broad Legal Support for

Exercises of Corporate Conscience .....

c. Corporate Conscience and Business

Practices May Include Religious,

Spiritual, and Moral Elementzs............

EE IIEIIN occvcuscoccetcvescacsusonendbiussusaianaianae

APPENDIX

Beek oF Rambel Cte ..ccccovcssevisisnieaaan

Page

& &

TABLE OF AUTHORITIES

CASES

A.P. Smith Mfg. Co. v. Barlow, 13 N.J. 145,

ii cainennesuciiabsinieecstinics

Gilardi v. U.S. Dep’t of Health & Human

Servs., 733 F.3d 1208 (D.C. Cir. 2013).....

Hein v. Freedom From Religion Found-

ation, 551 U.S. 587 (2007) .....................+..

Hobby Lobby v. Sebelius, 723 F.3d 1114

(10th Cir. 2013)(No. 13-354)............0..:::0000008

Valley Forge Christian College v.

Americans United for Separation of

Church and State, Inc., 454 U.S. 464

Tee acieecnsemmnsionns

FEDERAL STATUTES AND REGULATIONS

26 USC § 170(b)(2) (2013) .............0.2ceeeeeeees

Dodd-Frank Wall Street Reform and

Consumer Protection Act § 1502, 124 Stat.

2213 (2010) (codified as amended at 15

BE OF PIPED? cccsncccescsnsoccccssccosscoess

Executive Order 13514 74 Fed. Reg. 52117

ois snc cntstnmebbsseucnperoncdosscse

Religious Freedom Restoration Act of 1993,

107 Stat. 1488, as amended, 42 USC

cies cindnaioebadecinntéseecuocensecnce

Securities Act of 1933, 15 USC §§ 77a-77aa

TABLE OF AUTHORITIES—Continued

INTERNATIONAL AND FOREIGN CASES _s Page(s)

Agrotexim Hellas SA and Others v. Greece,

No. 14807/89 (ECtHR, 1995)................... 12-13

Bramic. Arbib, D. 1990 (25 May 1990) (C.A.

IIE cca thandscesisntedahisnincdbssiecnasiiats 19

Cantos v. Argentina, LACtHR Series C 85

PIII scl ccinicatnisiincnasiinesenacniniceds 12

Cha’are Shalom Ve Tsedek v. France,

No. 27417995 (ECtHR Grand Chamber,

SE Wissninindcvbasdubaibadiiaiinacemniiiesicsanalaadens 16, 17, 23

Church of Scientology of Paris v. France,

No. 19509/1995 (ECmHR, 1995) .............. 9

Church of X v. the United Kingdom, No.

3798/68 (ECmHR, 1968)...................ccc000e 14,15

Company X v. Switzerland, No. 7865/77

EE MII cetnistictcenseckuesemstessctusseineberens 15

Ex Parte Chairperson of the Constitutional

Assembly (6 September 1996) (Const

INO <souiicaiscunaksieavensmadnsdabelisen aussi 10

Ford v. Quebec [1988] 2 S.C.R. 712 (S.Ct.)

SIRENS re ena Hn ee ro Ree NSBR 11

Germany Federal Court of Justice, 28

March 2003, V ZR 261/02.................. ee 7

Harries v. Church Commissioners for

England {1992} 1 WLR 1241 ......0000000...... 31

Hasan and Chaush v. Bulgaria, No.

30985/96 (ECtHR, 2000)....................000000 7

TABLE OF AUTHORITIES—Continued

Page(s)

Holy Synod of the Bulgarian Orthodox

Church (Metropolitan Inokentiy) v.

Bulgaria, Nos. 412/03 and 35677/04

RRR Rea veneer ve 7

i.S. Buchdruckerei Elgg AG, 102 I 468 (6

October 1976) (Fed.Ct.)(Switz.)................ 18

i.S. Model AG gegen Steuerverwaltung und

Verwaltungsgericht des Kantons

Thurgau, BGE 126 I 122 (13 June 2000)

Ne EID io crecnsenmiicncmnebaccnniuncenneninns 18

t.S. Neuapostolische Kirche in der Schweiz,

BGE 95 I 350 (9 July 1969)

ID 2. os eathmaeniimidaeiiien 18

Kustannus Oy Vapaa Ajattelija AB and

Others v. Finland, No. 20471/92

(ECMHR, 1996) ..........ccce:ccsscseeseseesesvesseoee 15, 16

18, 19

Laaouej_ c. Association Baby-Loup, S

13/02981 (27 November 2013)C.A.

IN ii ncicsinsdiinieiiiradinbdeinapmidieonini 19

New Testament Church of God v. Stewart

EE SEF CIEE CID cecccnssscnssecinsnesctscsensiine 7

NGK in Afrika (OVS) v. Verenigde Geref.

Kerk in Suider-Afrika 1999 (2)SA 156

LS eae ne Le Oe 7

Obst v. Germany, No. 425/03 (ECtHR,

Siriilcscccocsssieaduilidbsbembencanensdnaudavadeadbasdbusiaannsi 7

Private law section, decision no. 7145 (29

March 2006\Ct. of Cass. I)(Italy) ............ 10

TABLE OF AUTHORITIES—Continued

Page(s)

Private law section, decision no. 12929, (4

June 2007)(Ct. of Cass.IIT) (Italy)............

Quebec v. Irwin Toy Ltd. [1989] 1 S.C.R.

ITEC

Rommelfanger v. Germany, No. 12242/86

i ennahinloncinmeninodons

Schiith v. Germany, No. 1620/03 (ECtHR,

ESE Ee a

Siebenhaar v. Germany, No. 18136/02

Ee a

Sindicatul “Pdstorul cel Bun” v. Romania,

No. 2330/09 (ECtHR Grand Chamber,

Singer v. Canada (4555/1991), CCPR/C/51/

ND 6 REMEDY cscdescoceccorencccosecoreeosecscese

Supreme Holy Council of the Muslim

Community v. Bulgaria, No. 39023/97

ci ccccnsdnannionionscnece

The Gay and Lesbian Clergy Anti-

Discrimination Society Inc v. Bishop of

Auckland [2013] NZHRRT 36

i ncn clacinaisnbnignnenannentnnntin

Triplex Safety Glass Co., Ltd. v. Lancegaye

Safety Glass (1934), Ltd. [1939] 2KB 395

is ieciinisienepeonneinomusinenss

Vii

TABLE OF AUTHORITIES—Continued

Page(s)

Verein ‘Kontakt-Information-Therapie’ and

Hagen v. Austria, No. 11921/86 (ECmHR,

SINE sckicuisthcineeiatdniiaticcnbicpdinblenakdadidaniaiuednteds 12

William Eduardo Delgado Pdez ov.

Colombia, Communication No. 195/1985,

UN Doc. CCPR/C/39/D/ 195/1985 (1990) . 7

X and Church of Scientology v. Sweden, No.

7805/77 (ECMHR, 1979)...........c.ccccccceeeeesee 14, 15

FOREIGN CONSTITUTIONS

Czech Republic Const., Art. 15(1)................

Czech Republic Const., Art. 16(2)................

Denmark Const. (1953), Art. 67...................

Germany Basic Law, Art. 19 $3 .................. 10

Germany Basic Law, _ Art. 140,

incorporating Art. 137 of the Weimar

III is nsuntncaninccideitebeansisseeducinbiniacatanis 7

Italy Const., Art. 2.........c.c.ccccecocecosessosscesoseses 10

RE RR ren 7

i, Be Wiicccninesinstininciuaninabundnniiconens 7

Netherland Const., Art. 120.....................26+- 20

Poland Const. (1997), Art. 25.3.........000...0004. 7

Portugal Law on Religious Freedom

is As BPE hc cicctmprnesssiaanicncuesielausaies 7

Spain Const., Art. 16, 29 December 1978,

and 1980 Organic Law on Religious

AIG Gictadiscidndcsktasiestnasidecisaiens 7

coe

TABLE OF AUTHORITIES—Continued

Page(s)

South Africa Const. $8(4) ........................000

FOREIGN CONSTITUTIONAL RULINGS

1 ByR 1013/89 (18 October 1989) (Const’l

I ois incnsdconecnbnpmiinadaianecsiomdabans 17

2 BvR 208/76 (25 March 1980XConst1 Ct.)

(Germany) (Translation in 4 DECISIONS OF

THE BUNDESVERFASSUNGSGERICHT—

FEDERAL CONSTITUTIONAL COURT—

FEDERAL REPUBLIC OF GERMANY

SERRE Peak SON Es OO NLD a ae ENTE 14,17

2 TIHRR 148 (1995) (Canada)........................ 11

2C_71/2010 (22 September 2010)\Fed.Ct.)

RI aa eo ee Bah» 14,18

BVerfGE 38, 281, 303 (1974) (Germany)..... 10

Decision no. 195 (29 December 1972)

ScD cvnevnnsnvcenssincnnicavencnenscaesae 20

STC 106/1996 (12 June 1996)(Const1 Ct.)

IIIT, sicionldh hchstinusica outa nnuasarsiasaenaisaipiicemnuiteeinis 19

STC 225/2002 (9 December 2002) (Const’]

UII cir kins ca on a ssabaavusnéaaieaditnuaiiunenkes 20

TK, 1975-1976, 13872(3) 11 (Nether.)......... 11

INTERNATIONAL CONVENTIONS, DIRECTIVES

AND GUIDELINES

Directive 2000/78/CE (27 November 2000)

TABLE OF AUTHORITIES—Continued

Page(s)

Directive on stunning of animals before

slaughter, 74/577/EEC (18 November

Se cicitesacnnncjinniacrnvassinieeienenvatinnseniianen 23

European Commission, A Renewed EU

Strategy 2011-14 for Corporate Social

Responsibility, COM (2011) 681 (2011).... 30

European Commission, Implementing the

Partnership for Growth and Jobs:

Making Europe a Pole of Excellence on

Corporate Social Responsibility COM

CRD Be CD ao nrvccccccnccccsvsescsvccccseconssevss 30

European Commission, Promoting a Euro-

pean Framework for Corporate Social

Responsibility COM (2001) 366 (2001)..... 30

European Convention for the Protection of

Animals for Slaughter (10 May 1979)

(Council of Europe), Art. 12-13, 17........... 23

European Convention for the Protection of

Human Rights and Fundamental Free-

doms, 4 November 1950, 213 UNTS 222,

entered into Force 3 September 1953:

I I ala ia aalicetaicanbaliawinsiienanenanainnnsneseninbin 12

IN hi cibiiciiasetiniedinisietensesersiunnnciesmernenrmmndiia 12,13

I ictssasdeiitiatniasiiniasoningnnabesnceewennpinadl passim

ti elacsictennitinnknecaemnnceimniaunninblias 15

ea ti nihainniniaadienaintinsetcncniennatilileats 15

TABLE OF AUTHORITIES—Continued

Page(s)

Int'l Covenant on Civil and Political Rights,

23 March, 1976, 999 UNTS 171, entered

into force 23 March 1976:

Intl Org. for Standardization, Discovering

in nia ceubsasbeepesewenseancones

Int] Org. for Standardization, Schematic

Overview of [SO 26000, http://www.iso.

org/iso/sr_schematic-over view.pdf...........

Int! Org. for Standardization, lists of codes

htip://www.business-humanrights.org/

Categories/ Principles....................0-.000-0++

Organization for Security and Cooperation

in Europe, Concluding Document of the

Vienna Meeting of Representatives of the

Participating States of the Conference on

Security and Cooperation in Europe,

Principle 16 (17 January 1989)................

sks ccansuacnssechavienschiiorimenciiosces

a iil ceva bindaduedavarvasanenesenes

Parliamentary Assembly of the Council of

Europe, Res. 1763 (7 October 2010).........

UN Declaration on the Elimination of All

Forms of Intolerance and Discrimination

Based on Religion or Belief, Proclaimed

by UN General Assembly Resolution

36/55 (25 November 1981), Art. 6 ............

TABLE OF AUTHORITIES—Continued

Page(s)

UN Universal Declaration of Human

Rights (GA res. 217A (III), UN Doc A/810

I algal

UN, GUIDING PRINCIPLES ON BUSINESS AND

HUMAN RIGHTS: IMPLEMENTING THE

UNITED NATION’S ‘PROTECT, RESPECT AND

REMEDY FRAMEWORK HR/PUB/ 22/04

(2011), http//www.ohchr.org/Documents/

Publications/GuidingPrinciplesBusiness

FOREIGN STATUTES, REGULATIONS AND

LEGISLATION

Art. L 512-17 of the Env. Code (France)......

Betriebsverfassungsgesetz §118 BetrVG

BE ic cupticasttsipisscciisbdubiiciniimaiimameienh

I csscin shins dlcenheslaieca bes sasiestnaiaecaaniadine

Companies Bill, 2012 (India), cl.135............

Decreto 1282/2003. (Arg. )...2.....---cccccesecsessorees

Equal Treatment Law (Nether.),

https://mensenrechten.nl/sites/default

/files/2013-05-08.Legislation ®20Equal%

20Treatment.pdf :

SINE ct acres ar sa ancemaptaiabenatommmecas saison

i eas

Law no. 194, 22 May 1978 (Italy), Art. 8.....

Ley (Federal) No. 25.673 (Arg.) ...cccec0:se0000-- 21, 22

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Ley 26.130 (28 August 2006)(Arg.)............. 21

Ley (Federal) No. 26.150 (2006)Arg.)......... 22

Ley Organica 2/2006, 3 May 2006, de

Educaci6én (Spain):

Fs Stee ivncensincinsntemteriansnspicctiieaiieennriies

MitbestG §1, Abs. 4 (Germany) ...................

National Health Service (General Medical

Services Contracts) Regulations

OE CUTER, TOR, By ve secccsccnsevesensseceszvaces

Norwegian Accounting Act (as amended in

2013), FOR-2013-12-19-1680, http-//ov

data.no/dokument/LTI/forskrift/2013-12-

I scutsvckssricsiidessmaneanironeomecadananarelnadliie

Resolucién 4405/08 (Minister of Health,

Province of Buenos Aires) (26 November

I gai oorae cies sesncccssccaesanerenauavanere

OTHER AUTHORITIES

Academy of Management Management,

Spirituality, and Religion Interest

Group, http://group.aomonline.org/msr/ ..

Alfred S. Farha, The Corporate Conscience

and Environmental Issues: Responsi-

bility of the Multinational Corporation,

10 NORTHWESTERN J. INT'L L. & BUS. 379

TABLE OF AUTHORITIES—Continued

Page(s)

Alexis Pauly, Luxembourg, 305, 315-318, in

STATE AND CHURCH IN THE EUROPEAN

UNION (Gerhard Robbers ed., 1995) .........

Anthony Bradney, United Kingdom, 524,

530-531, in RELIGION AND THE SECULAR

STATE: INTERIM REPORTS’ (Javier

Martinez-Torrén & W. Cole Durham, Jr.

ics Se sicihicteeniisitanatansrticenihileiseinsaitiaccniven

Balazs Schanda, Hungary, 541, 548-549, in

LEGAL POSITION OF CHURCHES AND

CHURCH AUTONOMY (Scripta Canonica 3)

(Hildegard Warnink ed., 2001).................

Balazs Schanda, Hungary, 323, 336-337, in

STATE AND CHURCH IN THE EUROPEAN

UNION (Gerhard Robbers ed., 1995) .........

Ben & Jerrys Corporate Social Respon-

sibility, available at http://bjsocial

responsibility.weebly.com/ (last visited

I Ti: TE encvcictntecestassnadecessctionanian

Brigitte Basdevant-Gaudemet, France,

157, 174-176, in STATE AND CHURCH IN

THE EUROPEAN UNION (Gerhard Robbers

Carmen Garcimartin, /reland, 403, in

RELIGION AND THE SECULAR STATE:

INTERIM REPORTS (Javier Martinez-

Torrén & W. Cole Durham, Jr. eds., 2010)

SEER EEE EERE EERE EEE EERE EEE EEEEEEEEE EEE EERE EEEEEHEEEEEEEEEEE

CAROLE BASRI, INTERNATIONAL CORPORATE

PRACTICE (October 2013 update)..............

x1V

TABLE OF AUTHORITIES—Continued

Page(s)

CENTER FOR ETHICAL BUSINESS CULTURE,

CORPORATE SOCIAL RESPONSIBILITY: THE

SHAPE OF A HISTORY, 1945-2004 (2010).... 29

Clare Midgley, Slave Sugar Boycotts,

Female Activism and the Domestic Base

of British Anti-Slavery Culture, 17

SLAVERY AND ABOLITION 3 (1996)............. 34

Companies Hit the Road Less Traveled:

Can Spirituality Enlighten the Bottom

Line?, BUS. WEEK (5 June 2002)............... 35

Concluding Statement, Latin American

Consortium for Religious Liberty (21

ee Pies tihicccdlenedsiiasissencccincnesstccnines 22, 23

Cong. Rec. S4781-01 (daily ed., 2 April

SNIING. csigecestilehiusdhebcadies unisasanteutacecesanetaebodouats 5

DALLOZ RECEUIL, Note, 1990 (France)......... 25

Danish Commerce & Companies Agency,

Reporting on Corporate Social Respon-

sibility: An Introduction for Supervisory

and Executive Boards (2009).................... 31

David McClean, United Kingdom, 553, 568-

570, in STATE AND CHURCH IN THE

EUROPEAN UNION (Gerhard Robbers ed.,

EMILE DURKHEIM, THE DIVISION OF LABOR

BE Ie CD ce sitcncescccseccnconcecnesssczsesesss 35

TABLE OF AUTHORITIES—Continued

Page(s)

Francis Lyall, Scotland, 593, 594, in

RELIGION AND THE SECULAR STATE:

INTERIM REPORTS (Javier Martinez-

Torré6n & W. Cole Durham, Jr. eds., 2010)

Gerald F. Cavanaugh and Mark R.

Bandsuch, Virtue as a Benchmark for

Spirituality in Business, 38 J. OF BUS.

NE EEF CD vesvcrnvevcennevcensecenseons 35, 36

Gerhard Robbers, Germany, 121, 122, in

LEGAL POSITION OF CHURCHES AND

CHURCH AUTONOMY (Scripta Canonica 3)

(Hildegard Warnink ed., 2001)................. 7

Gianni Long, Italy, 319, in CHURCH

AUTONOMY: A COMPARATIVE STUDY

(Gerhard Robbers ed., 2001)..................... 7

GILBERT FAIRHOLM, CAPTURING THE HEART

OF LEADERSHIP: SPIRITUAL COMMUNITY IN

THE NEW AMERICAN WORKPLACE (1997)... 35

Gustavo Fernandez de Andrade, Compar-

ative Constitutional Law: Judicial

Review, 3 U. PA. J. Const’l L. 977 (May

ALE Seo an Ise Lene TICE ete 21

Ingvill Thorson Plesner, Norway, 467, in

LEGAL POSITION OF CHURCHES AND

CHURCH AUTONOMY (Scripta Canonica 3)

(Hildegard Warnink ed., 2001)................. 7

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

Isabelle Riassetto, Droit de travail -

Enterprise de tendance, in FRANCIS

MESSNER, ED., DICTIONNAIRE DE DROIT

DEES RELIGIONS (ZO10) ..........0.cccccccccsscscsescese 24, 25

James Casey, Ireland, 87, 89, in CHURCH

AUTONOMY: A COMPARATIVE STUDY

(Gerhard Robbers ed., 2001)..................... 7

Jan Velaers & Marie-Claire Foblets,

Belgium, 103, 117, in RELIGION AND THE

SECULAR STATE: INTERIM REPORTS

(Javier Martinez-Torr6én & W. Cole

Dara, Jr. OG8., BOIO) ..........cccccecsccsccsvece 7

JAVIER MARTINEZ-TORRON, RELIGION AND

BE Oe ID CPI ois vccdcsnicccscssncssesencnobeeks 24

JAY CONGER, SPIRIT AT WORK: DISCOVERING

THE SPIRITUALITY IN LEADERSHIP (1994).. 35

JEAN RIVERO AND JEAN SAVATIER, DROIT DU

Ts COs OE. TINE) on cccccsciscccisedececencsercese 25

Jifi Rajmund Tretera, Czech Republic, 633,

640-641, in CHURCH AUTONOMY: A

COMPARATIVE STUDY (Gerhard Robbers

EEE «<< conninntuuannicsscenaanaceusssbeasaleaeleli 7

Jolanta Kuznecoviene, Lithuania, 283, 292-

293, in STATE AND CHURCH IN THE

EUROPEAN UNION (Gerhard Robbers ed.,

xvll

TABLE OF AUTHORITIES—Continued

Page(s)

JOHN HENRY MERRYMAN AND ROGELIO

PEREZ-PERDOMO, THE CIVIL Law

TRADITION: AN INTRODUCTION TO THE

LEGAL SYSTEMS OF EUROPE AND LATIN

ARERICA (SE OG. BOOT) ...0...2.00ccerccccessseccccees 20

KPMG et al., Carrots and Sticks: Sustain-

ability reporting policies worldwide

Tee lc ceennmutesane 30

KPMG, KPMG INTERNATIONAL SURVEY OF

CORPORATE RESPONSIBILITY REPORTING

Lars Friedner, Sweden, 537, 547, in STATE

AND CHURCH IN THE EUROPEAN UNION

(Gerhard Robbers ed., 1995)...................4. 8

Lawrence B. Glickman, Abolition and the

Origins of American Consumer Activism,

56 AM. QUART. 4 (2004)..............ccceceeeeeeeeee 34

Lev Simkin, Church and State in Russia,

261, 275, in LAW AND RELIGION RELIGION

IN PoOST-COMMUNIST EUROPE (Silvio

Ferrari et al. eds., 2003) .................2.:000006- 7

Margaret Benefiel, The Second Half of the

Journey: Spiritual Leadership for our

Organizational Transformation, 16

LEADERSHIP QUART. 723-747 (2005)......... 35, 36

Marius Emberland, The Corporate Veil in

the Jurisprudence of the Human Rights

Committee and the Inter-American Court

and Commission of Human Rights, 4

Hum. RTs. L.REV. 261 (2004).................... 11

TABLE OF AUTHORITIES—Continued

Page(s)

MARIUS EMBERLAND, THE HUMAN RIGHTS

OF COMPANIES (2006) ............000005000+seeess0000

Marjolein Lips-Wiersma, Analysing the

Career Concerns of Spiritually Oriented

People: Lessons from Contemporary

Organizations, 7 CAREER DEV. INTL 385

Matti Kotiranta, Finland, 273, 287, in

RELIGION AND THE SECULAR STATE:

INTERIM REPORTS (Javier Martinez-

Torrén & W. Cole Durham, Jr. eds., 2010)

POSTS ES SESE ESEEHSHEEHSEESH TESTES ETEHEETSE ESS ESET HS ESTEE HEHEHE EE EEE

MAX WEBER, THE PROTESTANT ETHIC AND

THE SPIRIT OF CAPITALISM (1930)..............

Merilin Kiviorg, Estonia, 261, 265, in

RELIGION AND THE SECULAR STATE:

INTERIM REPORTS (Javier Martinez-Torrén

& W. Cole Durham, Jr. eds., 2010) ..........

Michael K. Addo, The Corporation as a

Victim of Human Rights Violation, in

MICHAEL K. ADDO, ED., HUMAN RIGHTS

STANDARDS AND THE RESPONSIBILITY OF

TRANSNATIONAL CORPORATIONS (1999) ....

MICHAEL SACHS, ED., GRUNDGESETZ

KOMMENTAR (5th ed. 2009).............0..0.00...

Michaela Moravtikova, Slovak Republic,

491, 508-509, in STATE AND CHURCH IN

THE EUROPEAN UNION (Gerhard Robbers

SERENA MRE ae Dneeee Bete A

xix

TABLE OF AUTHORITIES—Continued

Page(s)

National Institute of Health Grants

Policy Statement: Grants to For-Profit

Organizations (October, 2012), http-/

grants.nih.gov/grants/policy/nihgps_2012/

nihgps_ch18.htm#_Toc271265300.............

Nicholas Eberstadt, What History Tells Us

about Corporate Responsibility, 7 BUS. &

SOC. REV. 76-81 (1973) ...............ccsccceccessees

PATRICK MACLAGAN, MANAGEMENT AND

ARIE CED ie vtevensncescsecevesscocssversceceses

Peter Roudik, Russian Federation, 505, in

LEGAL POSITION OF CHURCHES AND

CHURCH AUTONOMY (Scripta Canonica 3)

(Hildegard Warnink ed., 2001).................

Protecting the Polar Bear, COCA COLA,

www.coca-cola.co.uk/environment/arctic-

home/protecting-the-polar-bear.html.......

R. Frank Balotti and James J. Hanks, Jr.,

Giving at the Office: A Reappraisal of

Charitable Contributions by Corpora-

tions, 54 Bus. LAw 965 (May 1999)..........

Richard Puza, Austria, 57, in LEGAL

POSITION OF CHURCHES AND CHURCH

AUTONOMY (Scripta Canonica 3)

(Hildegard Warnink ed., 2001).................

Ringolds Balodis, Latvia, 253, 270-271, in

STATE AND CHURCH IN THE EUROPEAN

UNION (Gerhard Robbers ed., 1995).........

TABLE OF AUTHORITIES—Continued

Page(s)

Robert T. Esposito, The Social Enterprise

Revolution in Corporate Law: A Primer

on Emerging Corporate Entities in

Europe and the United States and the

Case for the Benefit Corporation, 4 WM. &

MARY BUS. L. REV. 639 (2013)..............0004.

SER CORPORATE SOCIAL RESPONSIBILITY: A

DUTCH APPROACH (2005).................2.2020008

Simon B. Brooks, CSR and the Straight-

Jacket of Economic Rationality, 30 INTL

J. SOCIOL. & Soc. POLICy 11/12 (2010).....

SOURENDRA PANDEY, ENCYCLOPEDIA OF

WORLD LEGAL, JUDICIAL AND COURT

Tee ns ciduensess

Sophie van Bijsterveld, Human Rights and

Private Corporations: A Dutch Legal

Perspective, 6 ELECTRONIC J. COMP. L. 4

Sophie van Bijsterveld, Netherlands, 524,

530-531, in RELIGION AND THE SECULAR

STATE: INTERIM REPORTS’ (Javier

Martinez-Torrén & W. Cole Durham, Jr.

RRR Se RSet a

Stephen Bottomley, Corporations and

Human Rights, in STEPHEN BOTTOMLEY

AND DAVID KINLEY, EDS., COMMERCIAL

LAW AND HUMAN RIGHTS (2002) ...............

UN Global Compact, http:/Awww.unglobal

ii cid cvatenshannoneinnelanices

34, 35

xxi

TABLE OF AUTHORITIES—Continued

Page(s)

UN Global Compact, About Us: The Ten

Principles, http//www.unglobalcompact.

org/AboutTheGC/TheTenPrinciples/inde

BN tissticnicoitescuniicotenisstbppiaidigalalioamainintamaiaiaes 26

UN Global Compact and UN Office of the

High Commissioner for Human Rights,

The UN Guiding Principles on Business

and Human Rights: Relationship to UN

Global Compact Commitments (July

RE icssctnsnddntucthicvanmnsiiedegatiaaneaioanmamsaies 27

US HHS, Health Resources and Services

Admin., Rural Health Grants,

http://www.hrsa.gov/ruralhealth/ grants/ 33

White House Faith-Based and Community

Initiatives: Federal Funds for Organi-

zations that Help Those in Need (2002),

http://www.in.gov/ofbci/files/Grants

William H. Kaempfer et al., Divestment,

Investment Sanctions, and Disin-

vestment: An Evaluation of Anti-

Apartheid Policy Instruments, 41 INTL

Ss OT as cndinssacsecstecccunincinanmeseninaanon 35

Z. Jill Barclift, Corporate Social Respon-

sibility and Financial Institutions:

Beyond Dodd-Frank, 31 No. 1 BANKING &

FIN. SERVICES POL’Y REP. 13 (2012).......... 29

xxl

TABLE OF AUTHORITIES—Continued

Page(s)

Zaboj Horak, Czech Republic, 251, 258, in

RELIGION AND THE SECULAR STATE:

INTERIM REPORTS (Javier Martinez-

Torrén & W. Cole Durham, Jr. eds.,

INTEREST OF AMICI CURIAE

This brief amicus curiae on behalf of the institutions

and individuals listed in the appendix is respectfully

submitted pursuant to Supreme Court Rule 37. The

institutions listed are each distinguished academic

organizations that specialize in law and religion. They

and the individuals—prominent academic experts in

international and comparative law—have joined to

share their broad international experience concerning

the collective aspects of religious freedom and the role

that for-profit organizations play in advancing these

freedoms.

SUMMARY OF THE ARGUMENT

In our corporate age, the right to freedom of religion

is vital not only in the lives of individuals, but in

expressions of that freedom in community with others

both in religious entities and in non-profit organiza-

tions (as acknowledged by the government, Hobby

Lobby Pet. Br. 17-19) and additionally, as here, in for-

profit corporations. There is no principle of corporate

life that requires founders or owners of corporations to

sacrifice their human rights in order to make use of

the corporate form, and nothing that prevents them

from embodying (indeed, incorporating) religious

beliefs in the for-profit vehicles of modern corporate

life. All businesses reflect the substantive goals and

commitments of their owners and managers, and it is

wrong to deprive religiously grounded convictions of

free exercise protections under RFRA merely because

they have been given corporate form.

‘ Pursant to Supreme Court Rule 37(3Xa), all parties have

consented to the filing of this brief. Pursuant to Rule 37(6), amici

affirm that no counsel for a party authored the brief in whole or

in part and no person other than the amici or their counsel made

a monetary contribution to this brief.

To the contrary, collective religious rights may be

exercised not only through the formation of familiar

associations such as churches, synagogues, mosques,

but also in countless other organizations and commu-

nal structures, such as hospitals, schools, universities,

orphanages, residences for the elderly, and other bod-

ies that further religious life and religious altruism.

These vital institutions can and do take both non-

profit and for-profit forms, and there is nothing about

that organizational choice that should limit eligibility

for freedom of religion protections. Indeed, such a

limit would run counter to the trend in many

jurisdictions in the United States and Europe, which

are currently expanding their corporate law to make

room for “hybrid” social enterprise entities such as

benefit corporations, flexible-purpose corporations,

and other entities that combine for-profit form with a

commitment to some form of social beneficial purpose.

Religious activity often extends to types of collective

action that go beyond the nonprofit sector: for exam-

ple, religious bookstores, religious publishing houses,

media outlets, and cemeteries. Religious organiza-

tions may also generate unrelated business income

internally, or may carry out commercial activities

through separately incorporated entities. Kosher and

halal food companies typically operate for a profit, but

serve religious needs. Islamic banks operate for profit

but follow strict religious rules that forbid charging

interest. Religious doctors may organize a for-profit

clinic to fulfil religiously-felt obligations to serve

others. In sum, religious beliefs practiced collectively

may naturally require modern corporate forms,

including for-profit ones. Religious rights do not

evaporate the moment profit motive is added to the

exercise of religious beliefs.

These realities are reflected in widely accepted

norms at the international, regional, and national

levels. Decisions by foreign and international tribu-

nals reinforce the principle that government should

not require collective religious rights to be checked at

the gate before entering the for-profit world. The

requirements of ethos organizations—bothb religious

and secular—are widely recognized and are consist-

ently granted exemptions from otherwise applicable

laws. But the principle is broader: a corporation’s

eligibility for religious freedom protections turns not

on status as a for-profit or non-profit corporation, but

on commitment to convictions that fall within the

ambit of religious freedom rights. As borne out by

international experience, corporations holding such

convictions need and deserve protections if full reli-

gious freedom is to be achieved in society.

Of course it is true that corporations have a separate

legal existence. But the Government draws an

extreme conclusion from this fact, arguing that this

means there is “no basis on which to impute the indi-

vidual-respondents’ religious beliefs to the corporate

respondents.” Hobby Lobby Pet. Br. 25. This misrep-

resents the significance of separate corporate legal

existence. The point is not to prevent corporations

from having views or commitments (including moral

or religious commitments) “imputed” to them. How

else could a corporation get its values and priorities, if

not from its owners and managers? Rather, the corpo-

rate form provides a mechanism for shielding owners

from personal liability for the debts and obligations of

the corporation—a mechanism designed to encourage

entrepreneurship and risk-taking. To say that the

behefs of owners must not be “imputed” to corpora-

tions makes no sense.

Separation for liability purposes does not require

separation for all purposes. In particular, corporate

entities should not be stripped of all dimensions of

religious conviction, and walled off from freedom

of religion protections. The Government’s claims to

the contrary are belied not only by international

precedent, but also by the overwhelming domestic and

foreign commitment to principles of corporate social

responsibility and corporate conscience. Even though

they “use labor to make a profit” (Hobby Lobby Pet. Br.

at 19), businesses worldwide are expected to concern

themselves with their impact on the environment,

social justice, or a wide range of issues of moral

significance. Just as Coca-Cola may have a corporate

conscience focused on saving polar bears, Hobby

Lobby, Conestoga Woods, and Mardel may have a

corporate conscience attuned to saving the lives of

unborn children.

The doctrine of the corporate veil was intended to

liberate corporate enterprise, not to hobble religion in

the commercial sector. The Government’s argument

has a “heads we win, tails you lose” quality, arguing

on the one hand that the RFRA rights of the owners of

the corporations are not violated because it is only

their businesses (and not they) that are subject to the

contraceptive mandate, but contending on the other

hand that the businesses do not have any free exercise

rights, because they are separate legal entities,

impervious to the convictions of their owners. In fact,

restrictions on collective expression of religion by for-

profit corporations substantially burden the free

exercise rights of both corporations and owners.

ARGUMENT

L. International Norms and Tribunals Repeat-

edly Recognize that Religious Freedom

has a Collective Dimension

a. International Agreements Protect Col-

lective Aspects of Religious Freedom

International norms emphasize a collective dimen-

sion of religious freedom rights. According to the

Universal Declaration of Human Rights,

Everyone has the right to freedom of thought,

conscience and religion; this right includes freedom to

change his religion or belief, and freedom, either alone

or in community with others and in public or private,

to manifest his religion or belief in teaching, practice,

worship and observance.’

Parallel language was incorporated in the Interna-

tional Covenant on Civil and Political Rights, to which

the US is a party.®

International norms that address religious rights

more concretely consistently recognize the importance

of legal entities to the practice of religion. Article 6 of

the 1981 UN Declaration on the Elimination of All

Forms of Intolerance and Discrimination Based on

Religion or Belief provides that “the right to freedom

of thought, conscience, religion or belief shall include”

a variety of freedoms, including the right “to establish

and maintain places [of worship or assembly], to

“establish and maintain appropriate charitable or

* Universal Declaration of Human Rights, Art. 18 (emphasis

added).

3 International Covenant on Civil and Political Rights (“ICCPR”),

Art. 181), ratified by the United States with no reservations to

Article 18, 138 Cong. Rec. S4781-01 (daily ed., 2 April1992).

humanitarian institutions,” to “make, acquire and

use ... articles and materials related to the rites

or customs of a religion or belief;” to “disseminate

relevant publications,” to “solicit and receive voluntary

financial and other contributions from individuals and

institutions;’ and so forth.‘ In contemporary legal

settings, it is difficult if not impossible to carry out

these functions without using corporate forms.

Similarly, in the commitments of the Organization

for Security and Cooperation in Europe (“OSCE”), a

number of the institutional prerequisites for religious

life are spelled out. Particularly salient are Principles

16c and 16d of the 1989 Vienna Concluding Document,

which provide that participating States in the OSCE

will grant appropriate legal entity status to religious

communities and will respect the autonomy of those

communities.®

International norms, then, provide significant pro-

tection of the right of religious communities, in the

interest of religious freedom and beyond protection of

individual conscience, to form entities with autonomy

to carry out their distinctive religious affairs.

b. National Courts and International Tri-

bunals Protect the Collective Aspects of

Religious Freedom

Numerous foreign courts and international tribu-

nals have also recognized the collective aspects of

* Proclaimed by UN General Assembly Resolution 36/55 (25

November 1981).

5 Concluding Document of the Vienna Meeting of Representa-

tives of the Participating States of the Conference on Security

and Cooperation in Europe, Principle 16, adopted in Vienna on

17 January 1989.

religious freedom.* The Grand Chamber of the

European Court of Human Rights (“ECtHR”) recently

® See, e.g., Serif v. Greece, No. 38178/97 (ECtHR, 1999); Hasan

and Chaush v. Bulgaria, No. 30985/96 (ECtHR, 2000); Obst v.

Germany, No. 425/03 (ECtHR, 2010); Siebenhaar v. Germany, No.

18136/02 (ECtHR, 2011); Schiith v. Germany, No. 1620/03

(ECtHR, 2010); Supreme Holy Council of the Muslim Community

v. Bulgaria, No. 39023/97 (ECtHR, 2004); Holy Synod of the

Bulgarian Orthodox Church (Metropolitan Inokentiy) v. Bulgaria,

Nos. 412/03 and 35677/04 (ECtHR, 2009); William Eduardo

Delgado Pdez v. Colombia, Communication No. 195/1985, UN

Doc. CCPR/C/39/D/ 195/1985 (1990); 28 March 2003, V ZR

(Fed.Ct.Just.XGerm.) 261/02; NGK in Afrika (OVS) v. Verenigde

Geref. Kerk in Suider-Afrika 1999 (2)SA 156 (SCAXS.Afr.)

(holding that congregation of a particular church had consistently

been treated by the courts as distinct juridical persons); New

Testament Church of God v. Stewart [2008] ICR 282 (UK); The

Gay and Lesbian Clergy Anti-Discrimination Society Inc uv.

Bishop of Auckland [2013] NZHRRT 36 (N.Zealand); Czech

Republic Const., Arts. 15(1), 16(2); Danish Const. (1953), Art. 67;

Germany Basic Law, Art. 140, incorporating Art. 137 of the

Weimar Constitution; Italy Const., Arts. 7 & 8; Poland Const.

(1997), Art. 25.3; Portugal Law on Religious Freedom 16/2001,

Art. 15 §1; Spain Const., Art. 16, 29 December 1978, and 1980

Organic Law on Religious Freedom, Art. 6.1; James Casey,

Ireland, 87, 89; Gianni Long, Italy, 319; Jifi Rajmund Tretera,

Czech Republic, 633, 640-641, in CHURCH AUTONOMY: A ComM-

PARATIVE STUDY (Gerhard Robbers ed., 2001); Lev Simkin,

Church and State in Russia, in LAW AND RELIGION RELIGION IN

POST-COMMUNIST EUROPE, 261, 275 (Silvio Ferrari et al. eds.,

2003); Richard Puza, Austria, 57; Gerhard Robbers, Germany,

121, 122; Balazs Schanda, Hungary, 541, 548-549; Ingvill Thorson

Plesner, Norway, 467; Peter Roudik, Russian Federation, 505, in

LEGAL POSITION OF CHURCHES AND CHURCH AUTONOMY (Scripta

Canonica 3XHildegard Warnink ed., 2001); Anthony Bradney,

United Kingdom, 737, 741; Sophie van Bijsterveld, Netherlands,

524, 530-531; Carmen Garcimartin, Ireland, 403, 411-412; Zéboj

Horak, Czech Republic, 251, 258; Francis Lyall, Scotland, 593,

594; Merilin Kiviorg, Estonia, 261, 265; Matti Kotiranta, Finland,

273, 287; Jan Velaers & Marie-Claire Foblets, Belgium, 103, 117,

in RELIGION AND THE SECULAR STATE: INTERIM REPORTS (Javier

noted: “religious communities traditionally and uni-

versally exist in the form of organised structures... .

Were the organisational life of the community not

protected by Article 9 [on religious freedom], all other

aspects of the individual’s freedom of religion would

become vulnerable.”

That Court has repeatedly held that “the right of

believers to freedom of religion [which] includes the

right to manifest one’s religion in community with oth-

ers ....is indispensable for pluralism in a democratic

society and is thus an issue at the very heart of the

protection which Article 9 affords.”* Legal structures

are a means of protecting “the right to manifest one’s

religion, especially for a religious community, in its

collective dimension. .... ”

The European Commission of Human Rights

(“ECmHR,” a precursor to the ECtHR) has upheld

organizational rights beyond those of religious

communities per se. In Rommelfanger v. Germany, the

Commission upheld a German decision permitting a

Catholic hospital to fire an employee who spoke out

Martinez-Torrén & W. Cole Durham, Jr. eds., 2010); Ringolds

Balodis, Latvia, 253, 270-271; Brigitte Basdevant-Gaudemet,

France, 157, 174-176; Lars Friedner, Sweden, 537, 547; Jolanta

Kuznecoviene, Lithuania, 283, 292-293; David McClean, United

Kingdom, 553, 568-570; Michaela Moravtikova, Slovak Republic,

491, 508-509; Alexis Pauly, Luxembourg, 305, 315-318; Baldzs

Schanda, Hungary, 323, 336-337, in STATE AND CHURCH IN THE

EUROPEAN UNION (Gerhard Robbers ed., 1995).

1 Sindicatul “Pdstorul cel Bun” v. Romania, No. 2330/09 (ECtHR

Grand Chamber, 2013) §136.

® Metropolitan Orthodox Church of Bessarabia, No. 45701/99

(ECtHR, 2001) §118.

* Td. §118.

against Catholic teachings.'° The Commission has also

characterized Article 9 religious freedom rights as

having a more collective nature than other rights

under the European Convention on Human Rights

(“ECHR”).

If. Foreign Courts and Legislation Protect

For-Profit Corporate Entities’ Exercise of

Religion

a. Numerous Courts Have Recognized

That For-Profit Entities have Funda-

mental Rights

Numerous courts have rejected the challenge that

human rights should be limited to natural persons. In

South Africa, the Constitutional Court declined to rule

that the term “everyone” in section 8(4) of the consti-

tution’s statement that “everyone shall enjoy all uni-

versally accepted fundamental rights and freedoms”

was limited to natural persons. The court explained:

It was argued that . . . by extending the rights to

juristic persons, the rights of natural persons are

thereby diminished. We cannot accept the

premise: many ‘universally accepted fundamental

rights’ will be fully recognised only if afforded to

juristic persons as well as natural persons... .

The objectors were also concerned that affording

rights to powerful and wealthy corporations would

result in detriment to individual rights, given that

powerful corporations have greater resources to

enforce their rights through litigation. But the

0 No. 12242/86 (ECmHR, 1989).

'! Church of Scientology of Paris v. France, No. 19509/1995

(ECmHR, 1995).

same could be said of powerful and wealthy

individuals. Moreover, the objection wrongly

equates juristic persons with powerful and

wealthy corporations. In South Africa there are

countless small companies and close corporations

that need and deserve protection no less than do

natural persons.”

The Italian Court of Cassazione has stated that

juridical persons have fundamental rights,'* relying on

Article 2 of the Italian Constitution: “The Republic

recognises and guarantees the inviolable rights of the

person, as an individual and in the social groups

within which human personality is developed.” When

personal rights rooted in the Constitution have been

violated, “such damages are indemnifiable also when

such violation has been suffered by a juridical person

or a collective juridical person, as long as this violation

is equivalent to a right that is retained by a human

person and does not presuppose a human nature to

exist.”'*

The German Constitutional Court, interpreting

Article 19 section 3 of Germany’s Basic Law, which

grants fundamental rights to “domestic legal persons

to the extent that the nature of such rights permits,”

has held that rights holders include for-profit corpora-

tions.” The Dutch Constitution similarly bestows

2 Ex Parte Chairperson of the Constitutional Assembly (6

September 1996\Const Ct.\S-.Afr.), para. 57-58.

13 Private law section, decision no. 12929 (4 June 2007XCt. of

Cass.IIIXItaly); Private law section, decision no. 7145 (29 March

2006 Ct. of Cass. IXItaly).

4 Id., para. 1.6.

1 BVerfGE 38, 281, 303 (1974); MICHAEL SACHS, ED.,

GRUNDGESETZ, KOMMENTAR (5“ ed. 2009), Art. 9 n.7.

“rights and claims also on corporate bodies and on

groups and organizations without corporate status in

so far as to do so can be meaningful with regard to the

nature of the relevant basic right.”** The British Court

of Appeal upheld a corporate right to avoid self-

incrimination, despite the fact that “a company cannot

suffer all the pains to which a real person is subject.”?’

The Supreme Court of Canada has also repeatedly

recognized that corporations may claim human rights."

Even the UN Human Rights Committee and

American Commission on Human Rights, institutions

that generally recognize only claims by individuals,’®

have permitted organizational rights to be vindicated

in a few cases.” In Singer v. Canada, the Human

Rights Committee rejected Canada’s claim that case

should be dismissed because the harm suffered was to

free expression rights of the corporate entity.”

Similarly, the American Commission determined that:

6 TK, 1975-1976, 13872(3) 11 (explanatory statement attached

to revised version of Dutch Constitution).

1’ Triplex Safety Glass Co., Ltd. v. Lancegaye Safety Glass

(1934), Ltd. [1939] 2KB 395, 409 (Ct_Appeal (UK).

8 Quebec v. Irwin Toy Ltd. (1989) 1S.C.R. 927 (S.Ct.X Canada);

Ford v. Quebec [1988] 2 S.C.R. 712, 766-67 (S.Ct. Canada).

18 In contrast to the situation in the US and Europe, the explicit

language and travaux préparatoires of the instruments creating

these bodies imposed limitations on the protection of non-

physical persons. See Marius Emberland, The Corporate Veil in

the Jurisprudence of the Human Rights Committee and the Inter-

American Court and Commission of Human Rights, 4 HUM. RTs.

L.REV. 261 (2004).

Id. at 257-275.

21 (455/1991), Admissibility Decision, CCPR/C/51/D/344/1994

(1994); 2 THRR 148 (1995 identifying the rights of the owner and

business).

although the figure of legal entities has not

been expressly recognized by the American

Convention ... this does not mean that, in specific

circumstances, an individual may not resort to the

inter-American system for the protection of

human rights to enforce his fundamental rights,

even when they are encompassed in a legal figure

or fiction created by the same system of law.”

In response to the challenge that human rights

should be reserved for humans, it is significant that

international human rights documents use the terms

“human rights” and “fundamental freedoms” inter-

changeably.”* For example, the full name of the

ECHR,—the treaty interpreted by the ECtHR —is the

“European Convention for the Protection of Human

Rights and Fundamental Freedoms.”“

The ECtHR has repeatedly held that corporations

may invoke many of the rights protected by the

ECHR,” and a significant though not unduly

22 OC-85/2001, Cantos v. Argentina, IACtHR Series C 85 (2001),

26-9.

23 EMBERLAND, THE HUMAN RIGHTS OF COMPANIES, 27 (2006).

* European Convention for the Protection of Human Rights

and Fundamenta)] Freedoms, entered into Force 3 September

1953.

# See supra note 6. The European Court has distinguished

between rights that have exclusively individualistic aspects, such

as Article 3’s prohibition against torture and the right of non-

religious conscience under Article 9, which do not adhere to

corporations, and those provisions, such as Article 9’s protection

of religion or the procedural guarantees under Articles 6(1) and

13, which corporations can claim. See, e.g., Verein ‘Kontakt-

Information-Therapie’ and Hagen v. Austria, No. 11921/86

(ECmHR, 1988) §1(4Xorganizations may not claim non-religious

conscience under Article 9); Agrotexim Hellas SA and Others v.

Greece, No. 14807/89 (ECtHR, 1995) §62 (corporations can claim

burdensome number have done so. Detween 1998 and

2003, for example, 3.8% of ECtHR cases directly

concerned corporate litigation.”

International commentators support the logic of

courts’ application of human rights to corporations. In

response to the common argument that corporations

are not human actors and are not the intended benefi-

ciaries of human rights protection, they argue that

“legal doctrine and practice are not also so literal””’:

“corporations are comprised of, run by, and operate for

the benefit of, human actors. There seems to be no

prima facie reason why corporations should not be able

to claim human rights protections where the benefits

will be passed on or felt by the human actors associ-

ated with those corporations.”* Commentators also

argue that corporations are “recognized as legal sub-

jects for many purposes and... are significant

participants in social, economic and political life. If

they bear these hallmarks of citizenship then why

should they be denied other protections afforded to

citizens, such as human rights?” ” Moreover, reciproc-

ity suggests that granting corporations human rights

gives corporations a stake in the human rights regime

procedural guarantees under Articles 6(1) and 13); supra notes 8

11 and infra notes 36-42 (discussion about the Court’s Article 9

for-profit jurisprudence).

#6 EMBERLAND, THE HUMAN RIGHTS OF COMPANIES, 13-14.

27 Michael K. Addo, The Corporation as a Victim of Human

Rights Violation, in MICHAEL K. ADDO, ED., HUMAN RIGHTS

STANDARDS AND THE RESPONSIBILITY OF TRANSNATIONAL CORPO-

RATIONS 193 (1999).

% Stephen Bottomley, Corporations and Human Rights, in

STEPHEN BOTTOMLEY AND DAVID KINLEY, EDS., COMMERCIAL LAW

AND HUMAN RIGHTS 47 (2002).

and “sharpen([s] the claim that corporations owe

human rights responsibilities to others.””

b. Foreign Courts Permit Commercial

Entities to Claim Religious Rights

In addition to upholding the right of for-profit

corporations to claim fundamental rights generally,

some foreign courts have held that for-profit or

commercial corporations may claim religious rights.

Cases directly on point are not numerous, and many

such decisions are comparatively recent.*! The ECtHR

and ECmHR demonstrate the evolving thinking on

for-profit-corporations and religious rights.

In 1968, the ECmHR seemed to foreclose the

possibility that any kind of organization could bring

religious claims. In Church of X v. the United

Kingdom, the Commission held that a corporation

incorporated for religious and educational purposes

could not claim rights under Article 9 because it was

not a natural person.” In 1979, in X and Church of

Scientology v. Sweden, however, the Commission

reversed its holding on organizations as religious

rights-bearers, stating that it was “now of the opinion

that the above distinction [in Church of X] between the

church and its members is essentially artificial . . . . It

should, therefore, be accepted that a church body is

® Td. at 62.

®) See, e.g., 2 BvR 208/76 (25 March 1980X Const Ct.X Germany);

Kustannus Oy Vapaa Ajattelija AB and Others v. Finland, No.

20471/92 (ECmHR, 1996); 2C_71/2010 (22 September 2010)

(Fed.Ct.XSwitz.).

* No. 3798/68 (ECmHR, 1968). The Court suggested that it an

Article 9 claim could be brought by or on behalf of the individual

members of the church, but rejected it in this case because no

members had been named.

capable of possessing and exercising the rights

contained in Article 9(1) in its own capacity as a

representative of its members.”*

The Commission’s thinking on for-profit corpora-

tions continued to evolve. At first, in a summary

opinion in Company X. v. Switzerland, a case in which

a LLC printing company objected to paying ecclesias-

tical taxes, the Commission appeared to explicitly

reject without any discussion the possibility that for-

profit corporations can enjoy religious freedom

rights.* In 1979, in X and Church of Scientology v.

Sweden, the Commission also considered that a claim

about commercial advertisements offering religious

objects for sale should properly fall under Article 10

(freedom of expression) rather than Article 9 (religious

freedom).*

By1996, however, the Commission was more willing

to consider religious rights of for-profit corporations.

In Kustannus Oy Vapaa Ajattelija AB and Others v.

Finland, an LLC publishing company maintained

by the Freethinker’s Association sought relief from

ecclesiastical taxes levied by the state for the

dominant religious traditions.°6 The Commission

referred to the Company X holding, but then explained

that under Article 9,

the general right to freedom of religion includes,

inter alia, freedom to manifest a religion or ‘belief

either alone or ‘in community with others’

whether in public or in private. The Commission

83 No. 7805/77 (ECmHR, 1979) §2.

* No. 7865/77 (ECmHR, 1979).

% X and Church of Scientology §$$4-5.

% No. 20471/92 (ECmHR, 1996).

would therefore not exclude that the applicant

association is in principle capable of possessing

and exercising rights under Article 9 para. 1.*”

However, “in the circumstances of the present case,”

in which the LLC challenged its tax liability, “the

applicant company cannot rely on the rights referred

to in Article 9 para. 1.” *

Since Kustannus, a religious freedom claim by a for-

profit corporation has not been squarely presented to

the ECtHR. In 2000, however, the Court held that an

association, found by French courts to be “essentially

commercial,” could bring an Article 9 religious

freedom claim.*® A Jewish association, which provided

kosher meat for sale in twenty butcher’s shops, nine

restaurants, and five caterers in the Paris region alone

and had more than eighty outlets for the sale of deep-

frozen food, challenged the French limitations on its

ability to certify ritual slaughter as kosher.“ In a split

Grand Chamber decision, the Court held that the

French limitations on the association’s ability to

certify ritual slaughter were proportionate and did not

unduly interfere with the association’s Article 9

rights.*' Seven of the seventeen judges dissented,

37 Kustannus §1(b) (iii).

3% Cf. Hein v. Freedom From Religion Foundation, 551 US 587

(2007 taxpayers cannot challenge constitutionality of expendi-

tures ordered by the executive branch); Valley Forge Christian

College v. Americans United for Separation of Church and State,

Inc., 454 US 464 (1981\Xtaxpayers cannot challenge conveyance

of property to church-related entities).

39 Cha’are Shalom Ve Tsedek v. France, No. 27417/95 (ECtHR

Grand Chamber, 2000) §§38-39, 69.

Td., esp. §§27, 39.

“1 Td., §§80-88.

arguing that the limitations were discriminatory and

violated the association’s Article 9 rights.“? But

importantly, neither the majority nor the dissenters

questioned the association’s right to bring a religious

freedom claim because of its commercial character.

Germany’s Federal Constitutional Court held that

“there are no doubts” that a limited-liability company

that operated a religious hospital open to all could

exercise religious freedom rights.** “Since by their goal

and intended objects as an association or company [the

LLC and other plaintiffs] are dedicated to the care of

the sick in a religious and charitable form, it is also

possible for the state, by sovereign act, to violate their

fundamental right of free practice of religion . . . . The

freedom to profess a religious belief comprises both the

freedom of the individual . . . and also, necessarily, the

freedom to form associations for the purpose of

collective public profession of belief. . .““* The Court

exempted the LLC from government regulation,

holding that, even though it involved laypeople in the

administration, it “shares in the realization of a part

of the mandate of the church in the spirit of Christian

piety, in harmony with the professed belief of the

Christian church.”™° The Court emphasized that under

the religious self-understanding of the corporate

“ Td., Joint Dissenting Opinion.

* 2 BvR 208/76 (25 March 1980XConst’ Ct.XGermany),

English translation in 4 DECISIONS OF THE BUNDESVERFAS-

SUNGSGERICHT—-FEDERAL CONSTITUTIONAL COURT—FEDERAL

REPUBLIC OF GERMANY 182, 190 (1980). Note that the Constitu-

tional Court has distinguished non-religious conscience rights,

which it has held do not apply to corporations. 1 BvR 1013/89 (18

October 1989X Const] Ct.XGermany). Cf. supra, note 25.

“ DECISIONS OF THE BUNDESVERFASSUNGSGERICHT, 191.

Td. at 194.

owners and corporate charter, “the practice of religion

encompasses not only the sphere of faith and of

religious service, but also the freedom to develop and

be effective in the world, as its religious and social task

requires." The Constitutional Court also upheld

religious freedom rights in the commercial context of a

Muslim butcher.*’

Switzerland’s Federal Court, while generally

limiting for-profit corporations’ religious claims for tax

relief,“ has also upheld religious tax relief claims:*®

Although legal persons in general and profit-

making entities in particular cannot rely on the

right to freedom of religion and conscience in the

context of taxation, it would be by all means

absurd—notwithstanding formal logic—to impose

upon a legal person with religious or church

stated purposes ecclesiastical taxes intended for

churches of different denominations.™

While cases explicitly dealing with the question of

religious rights of for-profit entities are fairly limited,

“7 1BvR 1783/99 (15 January 2002XConst1 Ct.4Germany)

(upholding religious freedom and employment rights of Muslim

butcher to exemptions from animal! protection laws).

*8 7.S. Model AG gegen Steuerverwaltung und Verwaltungsgericht

des Kantons Thurgau, BGE 126 I 122 (13 June 2000) (Fed.Ct.)

(Switz.).

*° 2C_71/2010 (22 September 2010 Fed.Ct.(Switz.).

5% i.S. Buchdruckerei Elgg AG, 102 I 468 (6 October 1976)

(Fed.Ct.XSwitz.), 477; see also 1.S. Neuapostolische Kirche in der

Schweiz, BGE 95 I 350 (9 July 1969XFed.Ct. Switz. Xholding

that religious organization can challenge imposition of church

taxes because of the disproportionate effect on the members’

religious freedom rights).

a number of national courts have simply upheld

commercial actors’ religious freedom rights without

engaging in discussions of the entities’ corporate

structuring. The Court of Appeals of Paris, for

example, has held that companies may require

employees to comply with their ideological or religious

orientation—for example, the Court recently held that

a day-care facility, as an entreprise de conviction,*!

could require employees to reflect its beliefs by not

wearing ostentatious religious symbols.” Indeed, the

Court has gone so far as to require organizations

holding themselves out as religiously based to accom-

modate religious employees’ needs: a Jewish kosher

restaurant was required to deviate from the legal

standard to meet Jewish law because it held itself out

as Jewish and the contract reflected “an equal

commitment of the parties to the Jewish law.”*

The Spanish Constitutional Court, in addressing the

rights of a private religious hospital, stated that the

right to have an ethos is not exclusive of educational)

institutions, and other companies or associations may

have such ethos. In the absence of specific legislation,

there cannot be an a priori limitation on the type of

companies or institutions that may have an ethos with

an external dimension.™ That Court also upheld

the right of employees to leave media organizations

without adverse legal consequences when the

®*! See infra note 72-81.

% Laaouej c. Association Baby-Loup, S 13/02981 (27 November

2013KXC.A ParisXFrance).

% Brami c. Arbib, D. 1990 (25 May 1990XC.A. Paris France),

596.

“ STC 106/1996 (12 June 1996XConst’l Ct. XSpain Catholic

hospital); see also text accompanying notes 72-73 infra. (ethos

rights of schools under Spanish law).

employer changes its “ideological orientation.” The

Italian Constitutional Court similarly permitted

religious universities and schools to fire employees

that go against their values and ideological connota-

tions.”

c. Foreign Constitutional and Legislative

Norms Support For-Profit Entities’

Religious Claims

In numerous civil law countries, legislation is more

dispositive of the nature of constitutional rights than

court cases. ©’ Moreover, in many countries, the

legislative branch has the ultimate say in matters of

constitutional interpretation, as in the UK and the

Netherlands. ™

Given this, it is particularly significant that major

legislation in many of these countries protects

corporate conscientious objection rights, particularly

in health care contexts. The UK National Health

Service “contracts-out” medical services to independent

% STC 225/2002(9 December 2002 Const’] Ct. Spain).

* Decision no. 195 (29 December 1972 Const'l Ct. Italy)

6’ JOHN HENRY MERRYMAN AND ROGELIO PEREZ-PERDOMO, THE

CrvIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS

OF EUROPE AND LATIN AMERICA (3d ed. 2007), 136. See SOURENDRA

PANDEY, ENCYCLOPEDIA OF WORLD LEGAL, JUDICIAL AND COURT

SYSTEMS (2009), 3.

% See, e.g., Const., Art. 120 (NetherlandsXbanning judicial

review of constitutional questions); Gustavo Fernandez de

Andrade, Comparative Constitutional Law: Judicial Review,

3 U. Pa. J. CONSTL L. 977, 978 (May 2001),; Sophie van

Bijsterveld, Human Rights and Private Corporations: A Dutch

Legal Perspective, 6 ELECTRONIC J. COMP. L. 4 (2002).

legal entities, including for-profit ones.®°? Regulations

provide that these contractors (including for-profit),

may assert conscientious objection to provision of

contraceptive and other medical and counseling

services. Italy likewise does not require any private

hospitals or clinics to perform abortions, regardless of

for-profit or nonprofit status.”

Argentine law also contains extensive conscience-

based exemptions for for-profit and other medical

service providers, which may conscientiously object to

the state requirement to provide contraceptives at

no cost.** The federal administrative regulation

implementing this law extends the bases for conscien-

tious objection by private health centers: objecting

institutions may not only invoke “reasons of belief”

to opt out of complying with the law, but also

“institutional purposes” or “the convictions of their

proprietors.” In Buenos Aires, the provincial Minister

of Health has accepted a publicly-held corporation that

owns clinics as a conscientious objector under these

regulations.™

Argentine for-profit entities may also conscien-

tiously object to the national requirement to carry out

sterilizations.® Schools, including for-profit ones, may

5 National Health Service (General Medical Services Contracts)

Regulations 2004/291 (UK), Reg. 4.

5! Law no. 194, 22 May 1978 (Italy), Art. 8.

Ley (Federal) No. 25.673 (Arg.).

® Decreto 1282/2003 (Arg.).

* Resolucién 4405/08 (Minister of Health, Province of Buenos

AiresX2008XArg.).

also have conscientious objections: they are permitted

to follow the government plan for sex education

“within the framework of their convictions” and to

create an institutional plan “within the framework of

respect for its institutional ideals and for the convic-

tions of its members.”®’

The Council of Europe, which oversees the imple-

mentation of the ECHR, has similarly resolved that

“[nJo person, hospital or institution shall be coerced,

held liable or discriminated against in any manner

because of a refusal to perform, accommodate, assist

or submit to an abortion, the performance of a human

miscarriage, or euthanasia or any act which could

cause the death of a human foetus or embryo, for any

reason.”

Amici are not opposed to introduction of healthcare

measures (which all amici acknowledge as an

important interest), but emphasize that comparative

law suggests this can and should be done in ways that

protect religious freedom and moral conscience. The

Government’s suggestion that the Affordable Care Act

provisions at issue are the least restrictive means to

advance the state’s interests is belied by international

practice.

Legislation in civil law countries and rules promul-

gated by international organizations illustrate a

shared constitutional-level expectation of protection

for conscience in commercial settings.*’ The European

* Ley (Federal) No. 25.673 (2006XArg.).

§7 Ley (Federal) No. 26.150 (2006 Arg.).

* Parliamentary Assembly of The Council of Europe, Resolu-

tion 1763 (7 October 2010).

® See, e.g., Concluding Statement, Latin American Consortium

for Religious Liberty (21 August 2013X“The financial motives of

Union (EU) and The Council of Europe, for example,

accommodate national-level protections for religious

objectors to animal rights laws in the case of Islamic

halal or Jewish kosher requirements.” The ECtHR

has recognized that such exemptions under national

laws give “practical effect to a positive undertaking on

the State’s part intended to ensure effective respect for

freedom of religion.””

Legislation in European countries also recognizes

religious freedom protections for ethos-based commer-

cial organizations, like the court decisions mentioned

above. Spanish law permits private schools, which

may be for-profits or nonprofits, to define their own

a corporation should not be an absolute barrier for an organiza-

tion contemplating an ideological objection. For-profit companies

are created, directed and conducted by human beings who exer-

cise human rights inherent in human dignity — both collective

and individual rights. To restrict the rights of corporate entities

is to restrict the rights of individuals who are identifiable and

possess an identity defined by religion and ideology, making it

possible to lift the corporate veil and protect those individuals

from the State.”Xstatement of more than 30 Latin American law

and religion academics).

7 The European Convention for the Protection of Animals for

Slaughter (10 May 1979XCouncil of Europe), Art. 12-13, 17;

Directive on stunning of animals before slaughter, 74/577/EEC

(18 November 1974XEV).

™ Cha’are Shalom Ve Tsedek, supra note 39, §76.

ethos, which can include religious and moral princi-

ples.” All members of the school community—teach-

ers, staff, students, and students’ parents—are obliged

to respect the school’s ethos.”*

Dutch law protects “the freedom of an organization

or association founded on religious or ideological

principles to impose requirements, which, having

regard to its purpose, are necessary to actualize its

foundation.” Organizations founded on religious or

ideological principles may discriminate in employment

decisions’”® and membership.”®

German and French laws and legal practice provide

for the right of employers to claim status as a

“tendency organization” or business with a religious

“affinity”, i.e., an organization with a religious or

ideological dimension.”” Germany also recognizes cor-

porate religious exemptions in its major legislation on

business co-determination, which provides employees

a role in firm governance.” In France, “the rights and

Ley Organica 2/2006, 3 May 2006, de Educacién, Art. 115

(Spain); see also JAVIER MARTINEZ-TORRON, RELIGION AND LAW IN

SPAIN (2014), paras. 534-37

73 Ley Orga&nica 2/2006, 3 May 2006, de Educacién, Art. 84.3

(Spain); RELIGION AND LAW IN SPAIN, paras. 536-537.

7% Equal Treatment Law §6a(2KaX Nether.).

8 Td. §§5(1Xa), 6a(2Xa).

76 Td. §6a(2Xa).

™ See supra notes 51-56 (comparable cases); Isabelle Riassetto,

Droit de travail — Enterprise de tendance, in FRANCIS MESSNER,

ED., DICTIONNAIRE DE DROIT DES RELIGIONS (2010), 215-16; The

French Court of Appeal has also applied this to an organization

focused on a non-religious belief. See supra note 52.

™% BetrVG §118 (GermanyXexempting Tendenzbetriebe);

MitbestG § 1, Abs. 4 (Germany\exempting “religious communities

specific obligation of an employee of an enterprise with

religious goals are correlated with the rights and obli-

gations of the employer . . . . [T]he liberty of both

parties must be understood within the requirements

of the ideological framework of the employer.” The

EU has also recognized this concept in its definition of

an “ethos-based” organization,™ granting them protec-

tions and flexibility in employment discrimination

contexts.®

Ill. International Trends Emphasize For-

Profit Entities’ Corporate Conscience

International experience underscores the importance

of corporate conscience in for-profit entities. The

Government’s portrayal of for-profit entities as

ineligible for RFRA protection™ because “they use

labor to make a profit, rather than to perpetuate a

religious values-based mission” demeans business

corporations and is flatly inconsistent with the

widespread modern insistence on corporate social

responsibility. The Government’s approach suggests

that corporations should not be concerned with moral

and their charitable and educational facilities, regardless of their

legal form”).

7? DALLOZ RECEUIL, Note, 1990, 596 (FranceXciting JEAN

RIVERO AND JEAN SAVATIER, DROIT DU TRAVAIL (9th ed. 1984), 194.

® Directive 2000/78/CE (27 November 2000KEU).

81 Directive 2000/78/CE (27 November 2000KEU); Riassetto,

Droit de travail — Enterprise de tendance.

® Religious Freedom Restoration Act of 1993 in Hobby Lobby

Pet. Brief at 19.

87d., citing 733 F.3d 1208, 1242 (D.C. Cir. 2013XEdwards, J.,

concurring in part and dissenting in part), petition for cert.

pending, No. 13-567 (filed 5 November 2013).

or conscientious principles, but should limit them-

selves to securing profits for the corporation’s

shareholders.

Governments and international norms, in contrast,

strongly encourage exercise of corporate conscience.

Though structured as distinct legal entities, corpora-

tions are not merely a limited liability shell, but regu-

larly — indeed inevitably — reflect the beliefs and moral

commitments of their owners or founders.’ Rigorous

exclusion of religious freedom from the commercial

corporate sphere would substantially burden RFRA

free exercise rights of those organizations that seek to

assert religious claims. The result would be a signifi-

cant weakening of the structures that undergird cor-

porate social responsibility and pluralism in society.

a. International Actors and Norms Stress

the Importance and Breadth of Corpo-

rate Conscience

The United Nations encourages corporate con-

science through the UN Global Compact, particularly

in the areas of human rights, labor, the environment,

and anti-corruption.” The Compact’s first two princi-

ples call upon businesses to “respect the protection of

internationally proclaimed human rights” and “make

sure that they are not complicit in human rights

abuses.”* In this regard, the Compact relies on inter-

national standards articulated in key human rights

* See, e.g., Ben & Jerrys Corporate Social Responsibility

(attributing corporate social attitudes to their founding partners),

http-//bjsocialresponsibility.weebly.com/.

& See http//www.unglobalcompact.org/.

% See http//www.unglobalcompact.org/AboutTheGC/TheTen

Principles/index.html.

instruments such as the UDHR and multilateral

human rights treaties.*®’

In 2011, the UN Human Rights Council unani-

mously endorsed a set of Guiding Principles on

Business and Human Rights, which further explain

that businesses, like Hobby Lobby, Conestoga Woods,

and Mardel, must both “avoid causing or contributing

to adverse human rights impacts through their own

activities” and “[sJeek to prevent or mitigate impacts

that are directly linked to their operations, products or

services by their business relationships, even if they

have not contributed to those impacts.”"“ These inter-

national norms mandate, rather than forbid, for-profit

businesses to consider the moral and human rights

implications of their actions.

The International Organization for Standardization

(ISO) creates definitive international business man-

agement standards,” which explain that corporate

87 See UNITED NATIONS, GUIDING PRINCIPLES ON BUSINESS AND

HUMAN RIGHTS: IMPLEMENTING THE UNITED NATION’S ‘PROTECT,

RESPECT AND REMEDY’ FRAMEWORK HR/PUB/22/04 (2011), 14,

http-//www.ohchr.org/Documenta/Publications/GuidingPrinciple

sBusinessHR_EN.pdf.

88 See UN Global Compact and UN Office of the High Commis-

sioner for Human Rights, The UN Guiding Principles on Business

and Human Rights: Relationship to UN Global Compact Commit-

ments, 14 (July 2011Xemphasizing that “{t)he responsibility of

business enterprises to respect human rights is distinct from

issues of legal liability and enforcement, which remain defined

largely by national law provisions in relevant jurisdictions.

Depending on circumstances, business enterprises may need to

consider additional standards.”)

® Int'l Org. for Standardization, Discovering ISO 26000 (2010),

2; Schematic Overview of ISO 2600, http://www.iso.org/

iso/sr_schematic-overview.pdf; see also lists of codes at http://

www.business-humanrights.org/Categories/Principles.

social conscience is an integral part of business, noting

that “[a]n organization’s performance in relation to the

society in which it operates and to its impact on the

environment has become a critical part of measuring

its overall performance and its ability to continue

operating effectively." Respect for human rights is a

core subject of social responsibility, the ISO explains,

and “an organization may face stakeholder expectations

that it go beyond respect, or it may want to go further

and contribute to the fulfillment of human rights”;”

“an organization should seek to integrate social

responsibility throughout its decisions and activities.”

Contrary to the Government’s view, corporate con-

science is a standard feature of transnational corpora-

tions. In its annual international survey of corporate

social responsibility, KPMG noted that 93% of the 250

largest companies in the world report on their corpo-

rate responsibility activities. Of the 100 largest

companies in 34 countries, 71% of publicly traded

companies conduct corporate social responsibility

reporting.™ In the United States, 86% of companies

report on corporate responsibility.” According to the

” Int] Org. for Standardization, Discovering ISO 26000 (2010),

*% ISO 2600 §6.3.2.2; see Human Rights Council, United

Nations General Assembly, Promotion and protection of alli

human rights, civil, political, economic, social and cultural rights,

including the right to development, 14th Session §4 {1 62-63

(2010), http://198.17C.85.29/Ruggie-report-2010.pdf.

% Int Org. for Standardization, Discovering ISO 26000 (2010),

%3 KPMG, KPMG INTERNATIONAL SURVEY OF CORPORATE

RESPONSIBILITY REPORTING 2013, 10.

* Td. at 21.

% Td. at 25.

2013 KPMG report, “CR reporting appears to be stand-

ard business practice the world over.”

Corporate conscience is essential for contemporary

businesses:*’ “Many business leaders embrace corpo-

rate social responsibility as a moral imperative and

expect that a company will use its economic and polit-

ical power in a socially responsible way by reducing

any negative impact of corporate activities on soci-

ety." Some argue the inevitability of corporate

conscience because a corporation’s profitability and

productivity are so closely tied with social approval

and support:

These simply are the facts of life for a corporation,

whether it does business only in a small town in

Indiana, or whether it has operations all over the

world . . . [T]he obvious conclusion [is] that a

‘corporate conscience’ must exist whether or not it

is explained to the company’s employees in credos.

Whatever moves the company to action, be it a

Management Committee, Executive Committee,

Board of Directors or even the CEO alone, there is

a conscience of the corporation which of necessity

must dictate ethical standards for the good of

% Jd. at 10.

7 =See, e.g., CENTER FOR ETHICAL BUSINESS CULTURE,

CORPORATE SOCIAL RESPONSIBILITY: THE SHAPE OF A HISTORY,

1945-2004 (2010 listing a “preliminary bibliography~ of over 250

works); see also CAROLE BASRI, INTERNATIONAL CORPORATE PRAC-

TICE (October 2013 update) §7.1.1.

% Z. Jill Barclift, Corporate Social Responsibility and

Financial Institutions: Beyond Dodd-Frank, 31 NO. 1 BANKING &

FIN. SERVICES POL’Y REP. 13, 15 (2012).

society. It may not stem from a ‘do good’ mentality

but more out of necessity. But it does exist.”

b. There is Broad Legal Support for

Exercises of Corporate Conscience

Legal systems the world over recognize and protect

the importance of corporate conscience in a broad

array of circumstances. The EU has made this the

centerpiece of multi-year policies,“ leading to

creation of multistakeholder platforms in a number of

relevant industrial sectors and monitoring of the

commitments of large European corporations to take

account of international corporate responsibility

principles.’

Many countries and stock exchanges have intro-

duced requirements for reporting on corporate con-

science or have created reporting guides. A survey of

45 countries identified 134 mandatory policies relating

to corporate responsibility and 53 more voluntary

policies.°* The US requires such disclosures under the

Securities & Exchange Commission’ and the Dodd-

® Alfred S. Farha, The Corporate Conscience and Environ-

mental Issues: Responsibility of the Multinational Corporation, 10

NORTHWESTERN J. INT'L L. & BUS. 382 (1990).

10 See European Commission, Promoting a European Frame-

work for Corporate Social Responsibility COM (2001) 366 (2001);

European Commission, Implementing the Partnership for Growth

and Jobs: Making Europe a Pole of Excellence on Corporate Social

Responsibility COM (2006) 136 (2006); European Commission, A

Renewed EU Strategy 2011-14 for Corporate Social Responsibil-

ity, COM (2011) 681 (2011).

01 A Renewed EU Strategy 2011-14.

2 KPMG et al., Carrots and Sticks: Sustainability reporting

policies worldwide (2013).

815 USC §§77a-77aa (2006).

Frank Act.’ By executive order, US federal agencies

must report on corporate responsibility perfor-

mance.!% Sustainability reporting is a required listing

requirement in a number of stock exchanges, includ-

ing Brazil, China, Malaysia, and South Africa.’

India’s Companies Act requires companies to establish

a Board Committee on Corporate Social Responsibility,

invest at least 2% of net profits on socially responsible

projects, and produce an annual report.’” Large

companies are required by to report annually on

corporate conscience issues in France, Norway, and

Denmark, and UK requires reports from both large

and medium-sized companies.'™”

Courts and legislatures actively facilitate many

forms of corporate social conscience. The UK High

Court held that a trust may be invested in accordance

with the moral aims of its objects.” In the United

States, virtually all states have permissive statutes

that allow corporations to give to charity even when

104 Dodd-Frank Wall Street Reform and Consumer Protec-

USC §78m(pX2012)).

105 Executive Order 13514, 74 Fed. Reg. 52117 (8 October 2009)

106 KPMG INTERNATIONAL SURVEY.

107 Companies Bill, 2012 (India), cl.135.

10% Article L 512-17 of the Environmental Code (France); Nor-

wegian Accounting Act (as amended in 2013), http/Aovdata.no/

dokument/LTI/forskrift/2013-12-19-1680; Danish Commerce &

Companies Agency, Reporting on Corporate Social Responsibility

(2009\Xrequiring large companies to report or explain why they

do not); Companies Act, 1985, c. 6 §235(3), sched. 7 (UK).

109 Harries v. Church Commissioners for England [1992] 1

WLR 1241, 1244-47 (trustees could invest according to “non-

financial considerations deduced from Christian morality”).

this does not benefit the corporation.!!° Even prior to

the existence of state corporate philanthropy laws, the

New Jersey Supreme Court rejected a shareholder’s

suit challenging a company’s decision to donate to

Princeton University," reasoning that as the nation’s

wealth has shifted into corporate hands, citizens have

reasonably “turned to corporations to assume the

modern obligations of good citizenship in the same

manner as humans do.”!””

The US federal government also fosters corporate

conscience: corporations may deduct up to 10% of their

taxable income for charitable contributions, and do not

require a business purpose for the contribution."® It

has established numerous programs that permit for-

profit organizations to obtain federal grants for

charitable activities.* These grants support, e.g.,

early childhood education,'” rehabilitation of youthful

offenders,''® supplemental education services,'!” job

110 See R. Frank Balotti and James J. Hanks, Jr., Giving at the

Office: A Reappraisal of Charitable Contributions by Corpora-

tions, 54 BuS. LAW 965 (May 1999 citing statutes).

1114 P. Smith Mfg. Co. v. Barlow, 13 N.J. 145, 98 A.2d 581 (1953).

112 Fy

113 26 USC $170(bX 22013).

114 See White House Faith-Based and Community Initiatives:

Federal Funds for Organizations that Help Those in Need (2002),

http//www.in.gov/ofbci/files/GrantsCatalog. pdf.

18 Td. (Headstart grants).

16 Td. (Responsible Reintegration of Youthful Offender project

grants).

‘17 Id. (Supplemental Education Services grants).

training,'"* rural rental housing loans,’ testing

strategies for individuals with limited English

proficiency,’ National Institute of Health grants,

and rural hospitals and clinics.’*”

c. Corporate Conscience and Business

Practices May Include Religious, Spir-

itual, and Moral Elements

Given the broad protection for corporate conscience

generally, singling out religious and moral exercises of

corporate conscience for non-protection not only runs

counter to the thrust of RFRA, but constitutes outright

discrimination against businesses like Hobby Lobby,

Mardel, and Conestoga Wood that include religious,

spiritual, and moral elements in their corporate

conscience. Just as Coca-Cola might express particular

interest in protecting polar bears,’ other corpora-

tions, such as Hobby Lobby, may be concerned with

protecting the lives of unborn children. As noted by

a Dutch government report on corporate social

"8 Id. (High-Growth Job Training Initiative Grants for the

Healthcare and Biotechnology Industries)

' Id. (Guaranteed Rural Rental Housing Loans)

‘%” Id (Grant Funds to Test Innovative Training Strategies

for Individuals with Limited English Proficiency and Hispanic

Americans).

2) National Institute of Health Grants Policy Statement:

Grants to For-Profit Organizations (October 2012), http~//grants.

nih.gov/granta/policy/nihgps_2012/

nihgpe_ch18.htm# Toc271265300.

' US HHS, Health Resources and Services Administration,

Rural Health Grants, available at http//www_hrea.gov/ rural

health/granta/.

‘® Protecting the Polar Bear, www .cocacola.co.uk/environment/

arctic-home/protecting-the-polar-bear html.

responsibility, the choice of goals for expressing

corporate conscience may be “dictated by idealism and

the personal opinions of the entrepreneur as regards

what is ethical, . . . {by respect} for the natural

environment [or by] . . . a deeper need for meaning, for

spirituality.”"* Many jurisdictions have added new

“hybrid” corporate forms such as benefit corporations

and flexible-purpose corporations that explicitly allow

social enterprises to have a commitment to other social

values alongside its profit-making goals.'~

Moral and religious convictions have long been a

part of attitudes towards business’” and efforts to

encourage responsible exercise of corporate con-

science.'*’ Religious British Abolitionists brought a

successful boycott of sugar grown in the West Indies

using slave labor, contributing to British abolition of

the slave trade in 1807.' Religious principles led to

™ SER CORPORATE SOCIAL RESPONSIBILITY: A DUTCH APPROACH

31-31(2005).

1% See generally, Robert T. Esposito, The Social Enterprise

Revolution in Corporate Law: A Primer on Emerging Corporate

Entities in Europe and the United States and the Case for the

Benefit Corporation, 4 WM. & MARY Bus. L. REV. 639 (2013).

® See, e.g., MAX WEBER, THE PROTESTANT ETHIC AND THE

SPIRIT OF CAPITALISM (1930), 19 (professional activities as a

“calling” or “duty”); EMILE DURKHEIM, THE DIVISION OF LABOR IN

SOCIETY (1893), 407 (work as a “duty”); Simon B. Brooks, CSR

and the Straight-Jacket of Economic Rationality, 30 INTL J.

SocIoL. & Soc. POLICY 11/12 (2010).

77 See generally Brooks, id. at 606; Nicholas Eberstadt, What

History Tells Us about Corporate Responsibility, 7 Bus. & Soc.

REV. 76-81 (1973).

8 See, eg., Clare Midgley, Slave Sugar Boycotts, Female

Activism and the Domestic Base of British Anti-Slavery Culture,

17 SLAVERY AND ABOLITION 137-162 (1996); Lav’rence B. Glick-

man, Abolition and the Origins of American Consumer Activism,

56 AM. QUART. 889-912 (2004).

commercial philanthropy and provision of social ser-

vices during the Industrial Revolution.’“ Moral

convictions fueled the movement to disinvest in corpo-

rations that did business in apartheid South Africa in

the 1980s.” As indicated by the “whole field of study

and practice around organisational culture, and mis-

sion and value statements, ... the idea of finding

meaning and value in our work is still with us.”**"

The trend of “workplace spirituality,” or seeking to

live faith and spiritual values in the workplace, began

in the 1920s and has become increasingly more

prominent.'* By the late 1990s, the Academy of

Management had formed a group on management,

spirituality, and religion.'* Research has correlated

workplace spirituality with greater employee engage-

ment, creativity, authenticity, meaningful work, and

emotional stability..* RFRA protections need to be

129 SER CORPORATE SOCIAL RESPONSIBILITY: A DUTCH APPROACH

24-26 (2005); PATRICK MACLAGAN, MANAGEMENT AND MORALITY

(1998).

1 See, e.g., Harries v. Church Commissioners for England

(1992) 1 WLR 1241; William H. Kaempfer et al., Divestment,

Investment Sanctions, and Disinvestment: An Evaluation of Anti-

Apartheid Policy Instruments , 41 INTL ORG. 457-473 (1987).

8! Brooks, CSR and the Straight-Jacket of Economic Rational-

ity, 609 (citation omitted).

132 See, e.g., Companies Hit the Road Less Traveled: Can Spirit-

uality Enlighten the Bottom Line? Bus. WEEK, (5 June 2002);

GILBERT FAIRHOLM, CAPTURING THE HEART OF LEADERSHIP: SPIR-

ITUAL COMMUNITY IN THE NEW AMERICAN WORKPLACE (1997); JAY

CONGER, SPIRIT AT WORK: DISCOVERING THE SPIRITUALITY IN

LEADERSHIP (1994).

88 See Academy of Management Management, Spirituality,

and Religion Interest Group, http://group.aomonline.org/mar/.

‘4 Margaret Benefiel, The Second Half of the Journey: Spir-

itual Leadership for our Organizational Transformation, 16

available to protect the continuing role of religion in

modern business life.

CONCLUSION

For the foregoing reasons, the decision below in

Hobby Lobby should be affirmed and the decision

below in Conestoga Woods should be reversed.

Respectfully submitted,

W. COLE DURHAM JR.

Counsel of Record

ELIZABETH A. CLARK

BRETT G. SCHARFFS

INTERNATIONAL CENTER FOR LAW

AND RELIGION STUDIES AT

BRIGHAM YOUNG UNIVERSITY

J. REUBEN CLARK LAW SCHOOL

452 JRCB

Provo, Utah 84602

(801) 422-6842

durhamc@law.byu.edu

Counsel for Amici Curiae

LEADERSHIP QUART. 723-747 (2005); Gerald F. Cavanaugh and

Mark R. Bandsuch, Virtue as a Benchmark for Spirituality in

Business, 38 J. OF BUS. ETHICS 109-117,(2005); Marjolein Lips-

Wiersma, Analysing the Career Concerns of Spiritually Oriented

People: Lessons from Contemporary Organizations, 7 CAREER

DEV. INT'L 385-397 (2002).

APPENDIX

List of Amici Curiae

The following institutions and prominent academic

experts have joined in the submission of this brief:

Institutions

International Center for Law and Religion Studies

J. Reuben Clark Law School

Brigham Young University

Asociacién para la Promocién y el Estudio de la

Libertad Religiosa

Madrid, Spain

Centro de Libertad Religiosa

Faculty of Law

Pontificia Universidad Catélica de Chile

Santiago, Chile

Consorcio Latinoamericano de Libertad Religiosa

European Centre for Law and Justice

Strasbourg, France

Instituto de Derecho Religioso del Estado

Montevideo, Uraguay

Oxford Society for Law and Religion

Oxford, United Kingdom

Law and Religion Chair

Catholic University of Louvain

Louvain, Belgium

Real Academia de Jurisprudencia y Legislacién de

Espafia — Seccién de Derecho Canénico y Derecho

Eclesidstico del Estado

Madrid, Spain

Experts Signing in Their Individual Capacity

Prof. Rex Ahdar*

School of Law

University of Otago

New Zealand

Prof. Carmen Asiain Pereira*

Professor of Law and Religion

Undergraduate and Graduate Faculty of Law

Universidad de Montevideo and

Facultad de Teologia del Uruguay Monsefior

Mariano Soler

Montevideo, Uruguay

Prof. [lias Bantekas*

Brunel Law School

London, United Kingdom

Prof. Paolo Carozza*

Director, Kellogg Institute for International Studies

Professor of Law and Concurrent Professor of

Political Science

University of Notre Dame

Notre Dame, Indiana

Ana Maria Celis Brunet, JCD*

Professor of Law and Director of the Department of

Canon Law

Pontificia Universidad Catélica de Chile

Santiago, Chile

Prof. Louis-Leon Christians

Law and Religion Chair

Catholic University of Louvain

Louvain, Belgium

Prof. Pieter Coertzen*

Unit for the Study of Law and Religion

Beyers Naudé Center for Public Theology

University of Stellenbosch

Stellenbosch, South Africa

Prof. Alberto Gambino*

Professor of Civil Law

European University of Rome

Rome, Italy

President Hamza Yusuf Hanson*

- Zaytuna College

Berkeley, California

Prof. Mark Hill QC*

Honorary Professor

Centre for Law and Religion

Cardiff Law School

Cardiff, Wales, United Kingdom

Prof. Natan Lerner*

Interdisciplinary Center Herzliya and

Tel Aviv University

Tel Aviv, Israel

Prof. Joaquin Mantecén*

Professor of Law

Universidad de Cantabria

Santander, Spain

Prof. Asher Maoz

Dean, Peres Academic Center

Law School

Rehovot, Israel

Prof. Javier Martinez-Torrén*

Professor of Law

Director, Department of Law and Religion

Complutense University

Madrid, Spain*

Prof. Stefano Delle Monache*

Professor of Civil Law

University of Padua

Padua, Italy

Prof. Michaela Moravéfkova*

Director, Institute for Legal Aspects of

Religious Freedom

Faculty of Law

University of Trnava

Trnava, Slovakia

Prof. Juan Navarro Floria*

Professor of Civil Law

Pontificia Universidad Catélica

Buenos Aires, Argentina

Prof. Andrea Nicolussi*

Faculty of Law

Universita cattolica di Milano

Milan, Italy

Prof. Rafael Palomino*

Faculty of Law

Complutense University

Madrid, Spain

Dr. Alberto Patifio Reyes*

Department of Law

Universidad Iberoamericana-Santa Fe

Mexico City, Mexico

Dr. Peter Petkoff*

Brunel Law School and Regent’s Park

College, Oxford

London and Oxford, United Kingdom

Prof. Vicente Prieto Martinez*

Researcher and Professor of Law and Religion

Universidad de La Sabana

Bogota, Colombia

Dr. Gregor Puppinck

European Centre for Law and Justice

Strasbourg, France

Prof. Gerhard Robbers*

Director of the Institute for European

Constitutional Law

Unniversitat Trier

Trier, Germany*

Prof. Giulio Salerno*

Professor of Constitutional Law

University of Macerata

Macerata, Italy

Juan Carlos Valderrama Adriansén*

Researcher and Professor of Law and Religion

Pontificia Universidad Catélica del Peri

President, Instituto de Derecho Eclesidstico

Lima, Peru

Prof. Lorenza Violini*

Professor of Constitutional Law

University of Milano

Milan, Italy

*Institutional affiliation listed for purposes

identification only.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.