Building upon presentations from a conference on law and religion, law professors Micah Schwartzman, Chad Flanders, and Zoë Robinson have collected twenty-two chapters exploring the emergence of corporate religious liberty in American law. Corporate, in this context, refers to both the broader sense of organized bodies of people into associations or congregations, as well as those more specific entities formally incorporated under the law. This volume offers a rich collection of heavily-footnoted scholarship (of which a relatively small portion was previously published in the legal literature, albeit revised for inclusion in this book) chronicling the most recent confluence of corporate law, constitutional law, and religion in the United States: the Hobby Lobby case and its potential, speculated aftermath for non-discrimination actions based upon sexual orientation and gender identity.

Many readers of Business Ethics Quarterly will be familiar with Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court’s 5-4 decision handed down in June 2014, which determined for the first time that closely held, for-profit corporations count as “persons” and could invoke the protections of the Religious Freedom Restoration Act (RFRA). As Amy Sepinwall succinctly summarizes, this case presented the Court with an “unusually broad conception of complicity: Hobby Lobby, a closely held for-profit corporation [that purported to operate according to religious principles], claimed that it would be participating in a wrong merely by subsidizing insurance [pursuant to the Affordable Care Act’s so-called contraception mandate] through which its employees might access contraception that might destroy embryos.” ^{Footnote 1} As the editors summarize in the Introduction, “The Court held that while the government may have a compelling interest in promoting women’s health, the contraceptive mandate—[a “substantial burden” on Hobby Lobby’s exercise of religion]—was not the ‘least restrictive means’ of achieving it” (xv).

While still in the Introduction, the editors set forth a series of questions, the answers to which are woven throughout the ensuing 22 chapters. The questions revolve around: 1) the justification for corporate religious liberty, i.e., why should corporations (and not just individuals) have the power to assert rights of religious free exercise?; 2) what organizational criteria are required to be demonstrated before a corporate entity can assert a claim of religious liberty—and what is the scope of that claim?; 3) what are the limits of corporate religious liberty, i.e., promoting women’s health was viewed as compelling, but what about preventing discrimination on the basis of sexual orientation?; 4) what are the objections to corporate religious liberty, i.e., should there be protections for third-party injuries to those employed or served by the corporation who adhere to no religion or a religion different from the corporation; and finally, 5) what are the implications of Hobby Lobby for the future? (xviii-xxi).

The book is organized into four parts. Part I, “From Religious Liberty to Freedom of the Church,” includes six chapters. These first chapters focus primarily on the shift from individual liberty to freedom of religious institutions, and authors mostly use the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC as their lens. Decided unanimously by the U.S. Supreme Court two years before Hobby Lobby, the Hosanna-Tabor case involved a Lutheran Church that had terminated one of its school teachers in apparent retaliation for her threat to sue the church for discrimination under the Americans with Disabilities Act. The question ultimately before the Court was whether religious organizations, e.g., churches and schools, could assert a “ministerial exception” grounded in the First Amendment’s guarantees of freedom to religious groups to select their leadership, and thereby avoid application of antidiscrimination laws when making decisions about hiring and firing ministers and other religious leaders in their community. The Court held that religious organizations have a right to be free from “government meddling with the church’s ‘internal governance’” (107). As co-editor Chad Flanders writes in the final chapter of Part I, “With Hosanna-Tabor, two things work in its favor: First, it has as its function the realization of a good (religion) that is internal to it. Second, it makes a strong case that government interference with its employment choices impairs its ability to fulfill that function” (122). The internal logic of the Court’s analysis in the context of a church or religious school is compelling. However, the larger question not resolved by Hosanna-Tabor was whether these First Amendment protections only extend to religious organizations, or whether it might be possible for nonprofit and for-profit corporations to also make similar claims protected by rights of religious freedom. Of significant importance to readers of Business Ethics Quarterly, it is to this question—and the Court’s answer in Hobby Lobby—that the remainder of the book turns.

In Part II, “From Freedom of the Church to Corporate Religious Liberty,” five chapters trace this movement by rigorously analyzing the Hobby Lobby decision. For those without the bandwidth to review all 554 law review articles generated by a search for Hobby Lobby on Westlaw, these five chapters provide a comprehensive survey of the case and its logic. Of particular note is chapter eight, “Corporate Law and Theory in Hobby Lobby,” in which Elizabeth Pollman explores the Court’s analysis of the following issues: “1) the theory of the corporation as a right holder; 2) corporate purpose; 3) the ‘closely held’ category; and 4) state corporate law as a mechanism for resolving disputes about a corporation’s religious activity or purpose” (150). It ultimately concludes that the case raises more questions than it answers. Ominously, Pollman contends that while Hobby Lobby recognizes the religious liberty of business corporations to avoid generally applicable laws, it provides only a “murky explanation of the corporate law mechanics for establishing and limiting this liberty” (171). In the final chapter in this part, co-authors Paul Horwitz and Nelson Tebbe step back from the doctrinal analysis of Hobby Lobby to ask broader questions about “culture-war polarization in wider politics and society” (209). These authors argue that out of this milieu has emerged a strategy whereby “political conservatives…emphasize religious communities and institutions in their litigation tactics, just as political liberals have followed the incentive to highlight individual rights in their legal strategies” (217).

This broader context is important for exploring the five chapters in Part III, “Hobby Lobby’s Implications,” the portion of the book I found the most compelling and thought-provoking. In chapter twelve, Douglas Laycock provocatively explains that “[t]he Greens, the family that owned Hobby Lobby, believed that they were being asked to pay to kill babies” (232-33). Moreover, in the Greens’ view, because they owned, directed, and managed the business—a closely held corporation—they believed they were morally culpable for the emergency contraception, possibly to be used by their employees, which can sometimes cause abortions. From their religious perspective, the Greens were litigating whether or not they “had forfeited their right to religious liberty when they incorporated their business” (235). Laycock bluntly concludes they did not, and moreover notes that “[t]he Supreme Court had never said that businesses were not protected by the Free Exercise Clause or by religious-liberty legislation” (235). Additionally, in 1993 when RFRA was passed, its intent was to protect businesses, as indicated by legislative history Laycock cites whereby “the drafters eliminated a definition of ‘person’ in early versions of the bill” that would have confined coverage to natural persons and religious organizations (236). Signaling the battle grounds between “fundamental human rights” and “grave evils” that continue to lie ahead—abortion, same-sex marriage, contraception, emergency contraception, sterilization, in vitro fertilization—Laycock ends his piece with optimistic hope that solutions are possible, but only if “mutual tolerance and political will” can be found (255).

Christopher Lund, in chapter fourteen, “Keeping Hobby Lobby in Perspective,” continues with a tone of reassurance. He writes, “[t]he truth is that corporations in this country are deeply secularized—secularized not by legal fiat, but by deeply rooted social norms and expectations. It would take much more than Hobby Lobby—it would take a social change almost amounting to a revolution—for that to change” (287). Yet, at least for those in the healthcare industry—and perhaps beyond, as Elizabeth Sepper argues in chapter fifteen, “Healthcare Exemptions and the Future of Corporate Religious Liberty,” some cause for concern is warranted. Specifically, Sepper notes that the ACA contraceptive mandate is merely a “microcosm” of this phenomenon, and cautions that “we can expect conflict and disagreement over religious beliefs in commercial pursuits from craft stores to furniture factories to car dealerships” (322).

Part IV, “Challenges to Corporate Religious Liberty,” concludes the book with six engaging chapters that attempt to map the post-Hobby Lobby, RFRA-pitted roads ahead. In so doing, readers are treated to, among other morsels, a review in chapter seventeen by Richard Schragger and Micah Schwartzman of both H. L. A. Hart and John Dewey’s twentieth century contributions to corporate metaphysics and ontological theorizing. This chapter offers the deepest philosophical swimming in the book, and concludes with a return to the ever-present shoreline of moral questions regarding which groups ought to have which rights. The final chapters of Part IV explore explicitly religious institutions and organizations, the limits of church autonomy, and the future of religious liberty in the Supreme Court. For those wanting to better understand the many nuances of modern, corporate life and the interplay of religious commitments and legal principles, this collection of twenty-two chapters (along with a thoughtful introductory road map by the editors) offers an essential guide.