You should make the time to read Rob Vischer’s new piece, Do For-Profit Businesses Have Free Exercise Rights? One interesting feature of the paper is Rob’s engagement with the First Amendment institutionalism literature. He makes the case for some line drawing, in his usual careful and thoughtful way. Here is the abstract:
Americans are understandably troubled by the prospect of Wal-Mart and the First Presbyterian Church as conceptually identical free exercise claimants. As an expanding array of for-profit businesses sue to block enforcement of the HHS contraception mandate, there is a danger that our failure to distinguish them will weaken the protections for all institutional free exercise claimants. Except for some still largely uncontroversial questions of internal church governance, the “moral bedrock” of religious liberty is increasingly contested when invoked by institutions. Absent some categorical distinctions, we risk what Fred Schauer and others have called “institutional compression” through a process “of leveling down rather than leveling up.” Nevertheless, in the wake of Citizens United, courts may decide not to embrace potential paths of distinction. If the identity of the speaker doesn’t matter for purposes of free speech, it is tempting to say that the identity of the actor doesn’t matter for purposes of free exercise.
Foreclosing a for-profit business’s standing to raise free exercise claims entirely is not justified. However, in light of the differences between corporate political speech and corporate religious exercise, and in light of the enormous market power wielded by for-profit businesses in the provision of essential goods and services, including the paths by which to earn a livelihood, a court would be justified in interpreting free exercise doctrine to reflect institutional distinctions.
Shopping on Sunday
Every year, it seems, Christmas becomes more commercialized. In NYC this year, we started seeing Christmas decorations in stores in October. In October. Christmas is starting to lap Halloween.
I was thinking about this when I read that the Catholic Church in Italy is working to repeal that country’s new Sunday shopping law. Earlier this year, in an effort to stimulate the Italian economy, the Monti government enacted a law allowing shops across the country to open on Sundays. The new law is opposed by a coalition including the Vatican, small shop owners, and some secularists who argue that a nationwide day of rest is in everyone’s interest. The Italian campaign is part of a larger movement called the European Sunday Alliance, a network of “trade unions, civil society organizations and religious communities committed to raise awareness of the unique value of synchronized free time for our European societies.”
The Sunday Alliance is not at heart religious . Sure, some Christians argue that Sunday shopping violates the Sabbath, but mostly the movement has secular goals, such as working less, putting a brake on commercialism, and spending time with family and friends. To be sure, small shop owners have an economic interest in ending Sunday shopping, since the practice disproportionately favors big-box retailers. But it’s not like the big-box retailers who favor Sunday shopping are being altruistic. They’re only advancing their economic interests.
The arguments for allowing Sunday shopping are pretty straightforward. Increased commercial activity means more wealth and greater tax revenues. More people will be able to find employment. And there is the matter of consumer choice. If people want to buy TVs on Sundays, why should the state stop them? Who’s harmed? Finally, allowing shopping on Sundays could be seen as a gesture toward religious pluralism. Not everyone observes the Christian Sabbath, and Sunday closing laws may create burdens for non-Christian businesses and consumers.
These arguments have carried the day in America. Notwithstanding the fact that the Supreme Court has declared Sunday closing laws constitutional, most places allow Sunday shopping nowadays. Americans have become accustomed to the convenience and see nothing wrong with it. A movement to ban shopping on Sundays in America would go nowhere.
To my mind, though, opponents of the new Italian law have a point. Economics isn’t everything. It’s not unreasonable to think that, one day a week, society should forgo buying and selling, even if that means a reduction in wealth and tax revenues. (Tax revenues? In Italy? Who are we kidding?) In a culture as homogeneously Catholic as Italy’s, Sunday is the only realistic option. Moreover, it’s not unreasonable to think that Sunday store openings will create a situation in which observant Christian employees feel pressured to work, or that Sunday shopping will threaten traditions Italians enjoy. Perhaps Italians don’t want a society in which Christmas becomes, inevitably, the Biggest Shopping Season of the Year.
So, to the opponents of the Italian law, I say, Good Luck and Buon Natale. Not that any of this would affect us here at CLR Forum. We’re open seven days a week.
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Posted in Commentary, Mark L. Movsesian, Uncategorized
Tagged Comparative Law and Religion, Italy, Religion and Business, Religion and Economics, Religion in Europe, Sabbath Laws