The controversial US Supreme Court decision in Burwell, Secretary of Health and Human Services v Hobby Lobby Stores Inc Footnote ¹ has important ramifications for religious liberty worldwide. Three closely held for-profit companies, including Hobby Lobby Stores Inc, sued the US Department of Health and Human Services (‘the HHS’) to prevent them from being required to facilitate access to four specific contraceptives that conflicted with their owners’ Christian beliefs that life begins at conception. The legal basis for their objection was the Religious Freedom Restoration Act 1993, as amended (‘the RFRA’), which prohibits the Federal Government from substantially burdening a person's exercise of religion except where the government can show that the burden is the least restrictive means of furthering a compelling government interest. This applies even where the burden results from a rule of general applicability. The US Supreme Court held by 5 to 4 that HHS regulations did violate the Act. Justice Alito, delivering the opinion of the court, construed the protection of ‘persons’ in the RFRA to include corporations because it was intended to provide very broad protection for religious liberty and because protecting the rights of closely held corporations, such as Hobby Lobby, protected the religious liberty of those who owned and controlled them. He rejected suggestions that a for-profit corporation could not be protected because its purpose was simply to make money, since corporations in the relevant states could, for example, be formed for any lawful purpose, including pursuing profit in accordance with the owners’ religious principles.

Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution is likely to be of interest to those following this debate. The format of this short book (80 pages including bibliography and index) is quite unusual. It originated from a series of debates hosted by the National Constitution Center in the US (the ‘NCC’). The Philadelphia-based NCC is a not-for-profit non-partisan institution founded in 1988 by the US Congress to increase awareness and understanding of the US Constitution. The debates formed part of a series of podcasts involving a mixture of conservative, liberal, libertarian and progressive constitutional scholars. The authors are David H Gans, Director of the Human Rights, Civil Rights and Citizenship Program of the Constitutional Accountability Center, and Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. The main body of the book consists of four chapters (together with an introduction and conclusion), where the debates are set out in transcript form, in essence, of the conversation between the authors, with brief introductions and comments from Jeffrey Rosen, the NCC president, and the occasional audience comment. Chapters 1 and 2 explore the rights of corporations generally and the specific question of whether they have a right to exercise religion, and are based on an NCC forum held on 10 December 2013. Chapter 3 analyses the oral arguments in Hobby Lobby and seeks to understand the potential implications of an eventual ruling, based on a podcast recorded on 26 March 2014. Chapter 4 was written in the wake of the Hobby Lobby decision and seeks to assess its significance, based on a podcast recorded on 30 June 2014.

In Chapter 1, both Gans and Shapiro express the opinion that for-profit corporations should be recognised as possessing rights. Gans, however, sees corporate rights as necessarily limited, for example, to protecting their role in business – limited because corporations cannot enjoy human autonomy or dignity. Shapiro, in contrast, bases the protection of corporate rights in the need to protect natural persons, who should not lose their rights when they associate with others. Chapter 2 is permeated by a similar disagreement. Gans argues that for-profit corporations should not have a right to exercise religion because this is a personal right, based on human conscience and dignity; otherwise the owners of such corporations would be allowed to impose their religious convictions on employees. Shapiro accepts that corporations cannot be treated as individuals because some rights cannot be enjoyed by corporations. Individuals, however, in his view, do not lose their rights when they form a corporation: the way in which the law has developed was not to confer a general exemption for religious belief but through the detailed crafting of the RFRA.

In Chapter 3, Gans and Shapiro agree that the Supreme Court seemed more interested at the oral argument stage in the application of the RFRA than in such questions of standing. The true importance of Hobby Lobby is debated in Chapter 4. Gans regards it as having historical importance: for example, in recognising that a for-profit corporation can have religious rights. Shapiro sees it more narrowly as a matter of mere statutory interpretation rather than, say, as concerned with religious liberty in a wider sense. Insofar as there is a broader issue, Shapiro sees it in terms of what the government imposes on people and its justifiability in statutory terms, a conflict manufactured by the government; seen this way, the question of corporate rights is a mere distraction. In the Conclusion, Gans and Shapiro reflect on the implications of Hobby Lobby for corporate rights and state power respectively. While the format of these chapters may be unusual, it does result in a thorough and engaging account of some very complex issues.

The Hobby Lobby case resulted in major changes to US law and showed how greater protection for religious freedom can be secured. The question of whether a company established for profit can claim protection under human rights law for its religious freedom under Article 9 of the European Convention on Human Rights is currently topical and controversial in the UK. In Exmoor Boat Cruises Ltd v The Commissioners for Her Majesty's Revenue and Customs, Mosedale J was prepared in principle to recognise that a company could have the right to freedom of religion if and to the extent that it was the alter ego of another person whose rights would otherwise be breached.Footnote ² However, in the highly controversial case of Lee v Ashers Baking Co Ltd, Brownlie J simply held that a limited company could not invoke such rights.Footnote ³ Both cases cited ECHR jurisprudence in support of their dicta. Lee is under appeal at the time of writing; in a dramatic move, the appeal hearing before the Court of Appeal in Belfast was adjourned until 9 May 2016 by Northern Ireland's Chief Justice, following an intervention by the Northern Ireland Attorney-General. The debates in this book will be useful reading for those seeking to influence such debates in the UK and beyond.