Steven J. Willis (University of Florida, Fredric G. Levin College of Law) has posted Taxes and Religion: The Hobby Lobby Contraceptive Cases. The abstract follows.
Beginning in 2013, the federal government mandates that general business corporations include contraceptive and early abortion coverage in employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.
So far, courts have been reluctant to hold corporations have religious rights
of their own; as a result, standing of a corporation to assert the religious
beliefs and rights of owners has become the primary issue in the twenty-six
separate cases moving through the courts. Courts are split on whether to grant standing; however, a large majority has used a variation of relational or associational standing to grant preliminary injunctions against enforcement of the tax.
This article discusses the relationship of morality and religion to general
business corporations. It concludes that over the past few decades, movements for social justice and corporate social responsibility have intertwined business corporations and moral issues, blurring the line between religion and commerce. It also concludes that courts should permit associational standing for closely-held corporations – particularly those electing S status for tax purposes – if the owners have unanimous (or near-unanimous) beliefs.
District Court: Prohibiting Religious Groups From Feeding the Homeless in Park Likely to Violate Pennsylvania RFRA
Here’s an interesting case from Philadelphia involving the religious mission to feed the homeless. The City of Philadelphia enacted a local ordinance prohibiting the distribution of food free of charge to three or more people anywhere in the Fairmont Park System (picnics for individual families, school trips, and so on, as well as special events, were exempted from the ordinance). The City’s reasons for the ordinance had to do with civil order, sanitation, and also an asserted dignitarian interest on behalf of the homeless. Several Christian religious groups had for decades distributed food to the homeless in the parks, but the mayor wanted these programs moved indoors. A temporary relocation effort of one of the religious groups’ food-sharing programs resulted in a drastic reduction in the number of homeless people who partook of the food-sharing services.
Plaintiffs sought a preliminary injunction prohibiting the City from enforcing the ordinance, alleging that the ordinance violated their rights under the Pennsylvania Religious Freedom Protection Act (PRFPA), which is essentially Pennsylvania’s version of the federal Religious Freedom Restoration Act, as well as the First Amendment. Readers will know that RFRA (as well as PRFPA) reinstated the interest-balancing test which preceded Employment Division v. Smith. (One interesting feature of PRFPA is that it requires “clear and convincing evidence” as its standard for the “substantial burden” component).
The Court granted the preliminary injunction on PRFPA grounds (it avoided the constitutional issue). It held that the plaintiffs (1) have a sincere belief that it is their religious obligation to “provide sustenance to the poor and needy” (and, added the Court, ”Plaintiffs are not unique in this respect. Acts of charity are central to Christian worship”); (2) the ordinance constitutes a “substantial burden” on the free exercise of plaintiffs’ religion; (3) the dignitarian “compelling interest” offered by the City was “difficult to comprehend”: “I am at a loss to understand how taking choice away from the homeless advances their dignity”; (4) even if reducing litter and other waste is a “compelling interest” (about which the Court expressed some skepticism), the City had not used the least restrictive means to achieve that interest (portable restrooms, trash compactors, additional maintenance staff, and other methods were raised by the Court).
One noteworthy item, which may have various broader applications. In response to the City’s claim that it did not burden the plaintiffs’ free exercise because it did not impose “restrictions upon praying or preaching or reading the Gospel or engaging with the homeless [in the Park],” the Court said:
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Posted in Commentary, Marc O. DeGirolami
Tagged Free Exercise Clause, Poverty, Recent Cases, Religious Freedom Restoration Act, State RFRAs