Isn’t the loosey-goosey “closely held” distinction in the Hobby Lobby cases intellectually incoherent?

According to CNBC in an article published on May 15, 2014,  Warren Buffett is the “CEO and primary shareholder of Berkshire Hathaway . . . .” For example, as of July 1, 2010, Buffett owned 32.4% of the aggregate voting power of Berkshire’s shares outstanding and 23.3% of the economic value of those shares. See Warren Buffett’s 2010 SEC Schedule 13D/A Filing.

If Mr. Buffett has effective control of Berkshire Hathaway, shouldn’t Berkshire Hathaway be considered “closely held” for purposes of the Supreme Court’s Hobby Lobby cases and the Religious Freedom Restoration Act of 1993 (RFRA), even though Berkshire Hathaway stock is widely and publicly traded? Compare Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____, slip op. at pp. 29-31 (June 30, 2014) (“For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.”) (emphasis added by Kopf).

What is the meaning of “closely held” and where in RFRA is such a distinction found? Why should it matter whether a corporation is “closely held,” whatever those words might otherwise mean, if the board of directors or CEO sincerely express a religious objection on behalf of the corporation to the contraception mandate found in the regulations of the Patient Protection and Affordable Care Act of 2010 (ACA)?

RGK

49 responses

  1. I think the Hobby Lobby decision steps on a legal minefield. Or rather, leaves it to the rest of the federal judiciary to step on the minefield while giving you almost zero guidance. Good luck, your honor. I wouldn’t want to decide one of those cases.

    SLS

  2. IANAL, take with a grain or two of salt…

    With regard to this case, absent another starting point, I’d narrow the scope of the generalization and look at IRS authority over imposition of ACA related penalties. I’m not sure Berkshire Hathaway would meet the IRS definition of closely held. (50% of stock owned directly or indirectly by 5 or fewer individuals).

  3. Justin,

    But if RFRA and religion are the touchstones of our concern, why should the IRS definition of “closely held” matter when that definition is unrelated to such concerns? Because the Court did not want to appear foolish and extend the religious opt-out to larger entities, it focused on smaller entities where the argument was easier to make. But why should size or beneficial ownership of a corporation matter if we are really talking about religious freedom exercised through the provision of health care by a corporate party?

    Thanks for your engagement. All the best.

    RGK

  4. Good question and observation. I haven’t read the SCOTUS summer blockbusters yet, but thanks to the blogosphere and social media I can get good commentary from the likes of you and others. Glad you are back to blogging

  5. If I’m crazy, someone please tell me why, but I’ve always thought that the court–all nine justices, both majority and dissent–completely missed the correct issue in this case. It should not have been about constitutional law, but corporate law. The very reason for incorporating is to separate the business from its owners. So, even if there is but one shareholder, the business and the shareholder are two, not one entities. If that is the case, how can a corporation have religious rights? It is a business entity, not an individual. (The cynic in me asks, When’s the last time you saw a corporation in your church, synagogue, mosque or temple?) Put another way, as we all learned in law school, if you want the benefits of corporate form, you have to be prepared to take the burdens. Or, as judges often say to lawyers, “You can’t have it both ways.”

    On the subject of your post–a very acute observation. I fear that, to some members of the majority at least, this is the sharp end of the wedge. A number of observers have noted that this court is developing a tendency to say that it is deciding only a narrow issue, then using that decision as precedent to expand the principle in a later case.

    And I don’t understand references to RFRA. If the ACA imposes on rights granted by RFRA, then Congress has amended the earlier statute. To hold otherwise is to transgress the principle that one Congress may not bind another one. No? Again, if I’m crazy, let me know.

  6. Judge–

    I’m not at all sure there is a distinction, and it may well be that, to obtain the necessary “appellate math,” Justice Alito wrote narrowly since the case didn’t require the Court to go any further and consider corporations other than those that are closely held. However, there is, I suppose, an argument that it is easier to divine the religious convictions of a closely held corporation than those of, say, a publicly traded corporation whose owners/shareholders may number in the many thousands or millions and who may have in common only their belief that the corporation will do well financially. Put another way, the owners of a closely held corporation may be more closely “identified” with the corporation than are the owners of a much larger corporation. But that may all be academic speculation over a second cup of morning coffee and the real answer — the likely answer — is appellate math.

    Best wishes for your improving health,

    DRF

  7. David,

    I agree with virtually everything you have written. Boiled down, my concern is this: If we believe for profit corporations can have religious sensibilities, then it seems to me that all corporations, not just vaguely defined “closely held” corporations, ought to have the same protections? When was the last time you heard the Court say something like a small group of believer can exercise their religious beliefs in the market place, but not a large group?

    All the best.

    RGK

  8. “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling”—permitting him, by virtue of his beliefs, “to become a law unto himself,”—contradicts both constitutional tradition and common sense.” –Justice Scalia, 1990

    There is nothing in that decision that is intellectually coherent. Our judges don’t interpret the law. They write it.

  9. Jon,

    The question of corporate form is talked about at great length in both the majority opinion and dissent. See slip op. pages 18-25, and Ginsburg’s dissent pages 13-20.

    The position you’re taking re: corporate form is expressly made in Ginsburg’s dissent, so, while you may disagree with the majority holding (and Ginsburg’s dissent is a fairly powerful document, so I wouldn’t blame you), the issue of corporate law and corporate form was absolutely discussed.

    As to the RFRA question, the rule of statutory interpretation is I believe that any two statutes should be read in a way as to coexist, unless one expressly repeals or exempts itself from the other, or there is absolutely no way they can coexist. If Congress had put into the ACA that the law would have effect “notwithstanding any provision of the Religious Freedom Restoration Act,” then there would be no case here.

  10. For those that are experts in this field, I wonder how this squares with cases like Employment Division v. Smith – the American Indian and peyote user who was denied unemployment benefits because of his religious use of peyote. I’m open to someone telling me the cases are not at all analogous, but my first impression was that is seems odd that an individual with a clearly recognized religious ritual would not have his religious liberties recognized. However, corporations would be exempt from separate laws based on their religious beliefs. Maybe I’m to cynical in thinking it has to do with who we are talking about (corporations v. individuals), the acceptability of their religious beliefs (peyote using v. anti-contraception) and political leanings of the court (i.e. the 5-4 nature of the decision).

    I’d love to hear some people who know more about this area respond. As I said, its off-the-cuff, but in a general sense I feel like it is just politics from the judicial branch masquerading as law (I know you don’t like it when people say that judge, so please don’t take offense).

  11. Peter H.,

    Where does the “closely held” distinction come from and how is it consistent with protecting the religious freedoms of everyone who elects to use the corporate form when the corporation, no matter how structured, takes a sincere and explicit religious decision to oppose a government demand?

    All the best.

    RGK

  12. Judge Kopf, I hope you won’t mind my responding to Young Attorney (and, of course, I stand ready to be corrected). YA, a little background. Congress enacted the Religious Freedom Restoration Act (the “RFRA”) in response to Smith and created a statutory ability for plaintiffs to claim a burden on their religious rights that Smith would not have allowed. The decision yesterday arose under the RFRA, not under the First Amendment. (Had it been brought under the First Amendment, the claim would have lost unless the Court had been prepared to overrule Smith.) Thus, whatever you think of the merits of the Hobby Lobby case, it is not inconsistent with Smith because the former arose under the First Amendment and the latter under the RFRA, and the standards are different.

  13. Oh, as to the closely held aspect, I’ve got no defense. I side with Justice Ginsburg on this (pages 19-20 of the dissent and footnote 19).

  14. Let me try to give answering your question a stab: in the Hobby Lobby majority decision, “closely held” is not a rule of law or legal criterion used to decide the case; it is a description of the Conestoga Wood Products, Mardel books stores, and Hobby Lobby craft shop companies which were the complaining parties. The nature of their ownership is a fact about the case used to decide whether each of those corporations is “a person” within the meaning of RFRA. For lack of a different definition of “person” in RFRA itself, the Dictionary Act, 1 USC 1, answers that question. That is, under the Dictionary Act, a corporation (any corporation) is a “person” under a federal statute (any statute) unless context indicates otherwise. Here, the pertinent context is whether the humans who are the owners of these particular corporations exercise their religion, in part, through the administration and operation of these businesses. The fact is, that they do. This is much more likely to be true of a closely held business, however defined, than of a publicly-traded corporation. But as a matter of law, the latter is not ruled out by the decision.

  15. David, does this overturn Smith and if not, why not? Not being a lawyer, it still seems to me that if you carve out an exception for this, you have to carve out one for natives who use peyote. What is the limiting principle in this decision?

  16. Bouldergeist, again not meaning to intrude on Judge Kopf’s sandbox, I’ll take a stab at answering your question. No, the Hobby Lobby decision does not overrule Smith. Smith still stands as a statement of First-Amendment law. Hobby Lobby relies on an interpretation not of the First Amendment but of the RFRA. Presumably, since enactment of the RFRA in 1993, folks who use peyote for religious purposes have been protected by the statute — but they remain unprotected by the First Amendment per Smith. (Do you see why lawyers take more Tylenol than other citizens?)

  17. BG: Not that David couldn’t answer himself, but let me try to simplify it. Constitutional rights are the bare minimum rights to which were are all entitled. By statute, our state or federal legislatures can confer more rights than the minimum. The Supreme Court decided in Smith that the Free Exercise Clause did NOT confer a constitutional right to a religion-based exception to every generally applicable law, such as the drug laws involved there. But Congress (or a state legislature) can by statute grant people more rights than the bare constitutional minimum. The Supreme Court decision in Hobby Lobby interprets a federal statute, the “Religious Freedom Restoration Act,” that was adopted for the purpose of granting more rights for religious exercise than the constitution would otherwise require. So, no, the decision does not overturn Smith, as a matter of constitutional law. However, it does confirm that by virtue of RFRA (and in certain other statutes), Native Americans have been assured more freedom of religious exercise than Smith alone allowed them.

  18. PDGPA,

    If any corporation can be a person under the Dictionary Act, there is simply no reason to distinguish between closely held corporations and other corporations. What makes closely held corporations more deserving of protection than non-closely held corporations if all corporations are persons under the Act?

    All the best.

    RGK

  19. Young Attorney,

    I am not offended in the least. Properly understood and applied, law is different than politics. But, I am enough of a realist to concede that politics does sometimes masquerade as law particularly at the Supreme Court, although I decry it.

    All the best.

    RGK

  20. I suppose the rationale could loosely be justified on the basis that since HHS already uses the IRS code as a proxy to determine what constitutes a “religious employer”, it can also use the IRS code as a proxy to determine which employers are owned and controlled by a sufficiently small number of identifiable people that their personal religious preferences can be enforced on their commercial activity. Leaving aside, of course, whether one agrees whether this is appropriate, the lack of guidance for resolving whether it applies or not when exactly 50% of owners want the exemption, etc.

  21. Because, unlike large public corporations, closely held family corporations (like those involved in the case) can be (and in this case were, in fact) vehicles through which religious individuals exercise (that is, put into practice) their religious beliefs. Thus, under the Dictionary Act, “the context” of RFRA (that is, its legislative purpose) does not “indicate otherwise” than that a corporation (that is, these particular corporations) are “persons” under RFRA. I don’t know quite what you mean by “more deserving of protection.” It’s not a question of what the corporation “deserves” (at least not in any moral sense), but rather whether this is a sound legal argument. Five justices thought so; four disagreed. I’m not even saying whether I agree with Alito’s opinion or not, just saying that it seems to me (but not to you, apparently) like a logically defensible argument as a matter of federal statutory construction.

  22. Isn’t that the effect, David? Whether the right to take it is conferred by the RFRA or First Amendment doesn’t matter as long as it exists. And do you think Congress intended to create that exception, or is this just another case of judges writing law?

  23. Bouldergeist, there’s no question but that Congress intended the RFRA to overrule Smith to the extent any statute could. But remember that Smith was interpreting the Bill of Rights, which can only be “overruled” by a constitutional amendment — which is about as easy to obtain as Judge Kopf’s much-lamented Article-III toilet. So, Smith remains good law with respect to its interpretation of the First Amendment, but the result in Smith has been changed by the rights afforded by the RFRA. (I’d best stop commenting before Judge Kopf decides I’ve abused the privilege.)

    All best,

    DRF

  24. Yesterday’s opinion officially held that since RFRA doesn’t define “person,” and since the Dictionary Act states that the legal definition of “person” includes corporation unless a law defines it otherwise, and since the Administration acknowledged that nonprofit corporations were “persons” under the RFRA, and since the Administration cannot point to any law that defines “person” to include nonprofits but exclude for-profits, then the RFRA applies to for-profit corporations. The ruling has other holdings, but they aren’t relevant to the question.

    I understood the statement that the ruling applied to closely held corporations was more of a practical issue. Many people asked how a corporation could possibly practice religion, apparently unaware that many churches *are* corporations, and many corporations are completely owned by churches (e.g., hospitals, thrift stores, adoption agencies). However, the ruling goes beyond cases where a corporation actually practices religion to include the owners’ religious practices that involve the corporation. For instance, a kosher deli doesn’t really practice religion, but the Court left the door open that the deli’s owner can run the business according to his religious principles (and that a regulation on the business could, conceivably, interfere with the owner’s religious freedom) even if he files paperwork with the state to make the deli a corporation.

    But the only case where the owner’s religious practices could pass through to the corporation would be cases where the corporation is, effectively, an extension of the owner. And the Court has only acknowledged that can happen when there are a small number of shareholders who all (or virtually all) agree to run the business according to religious principles. Although the Supreme Court didn’t adopt the argument (or, at least, didn’t say they adopted the argument), the ruling comes very close to the reverse veil piercing argument from Professor Bainbridge ( http://www.professorbainbridge.com/professorbainbridgecom/2013/03/using-reverse-veil-piercing-to-vindicate-the-free-exercise-rights-of-incorporated-employers.html ).

    Honestly, I don’t understand the fascination with corporations here. I think everybody conceded that sole proprietorships would be able to make the Hobby Lobby argument. I think partnerships could make the Hobby Lobby argument. Limited partnerships, LLCs, and LLPs are less clear, but it seems to me that at least some of them could make the argument. Incorporating doesn’t prevent a closely held company from being considered a “minority owned business,” but there is apparently widespread belief that it prevents a company from being considered a religiously-owned company.

  25. pdgpa,

    Let’s assume that Warren Buffett was a born again Christian and he decided that none of the Berkshire Hathaway companies should contribute to the purchase of health insurance that facilitated contraception. By the way, according to the Forbes Global 2000 list and formula, Berkshire Hathaway is the fifth largest public company in the world. Why should he be denied the benefits of the Court’s exemption because, although he controls BK, the corporation is not “closely held?” You say because it is “a matter of federal statutory construction.” I say, for purposes of argument, that there is no statutory basis for distinguishing between closely held for profit corporations and other for profit corporations when the corporations, through their duly elected officers, decide to express their religious sensibilities through the corporation they run. What am I missing?

    All the best.

    RGK

    PS By the way, I am not saying whether I agree with the result of the Hobby Lobby cases either..

  26. Max,

    See above for my response to pdgpa. Additionally, you say, “I understood the statement that the ruling applied to closely held corporations was more of a practical issue.” I say it is practical but not principled. I say it depends upon whose ox is being gored. If you were my mythical Warren B., wouldn’t you wonder why the ruling didn’t also protect you? All the best.

    RGK

  27. This morning I thought that “closely held” was defined by the SEC, but I haven’t been able to find any definition on their website. I did find a mention that “closely held” is legally defined in in some states.

    Warren Buffet is, of course, an unusual case. I was under the impression that once a stock is publicly traded the corporation is no longer closely held. Of course Berkshire Hathaway offers its stock to the public, and according to my definition that would mean that it is not closely held, even if Buffet always gets what he wants. Unfortunately I am unable to find anything that says my definition is correct.

    From a practical standpoint, once a company offers shares to the public, they have to comply with so many SEC regulations that they generally try to get as many shareholders as possible. That is, you see lots of closely held corporations with 10 shareholders or fewer and lots of public corporations with 1000 shareholders or more, but not many corporations with 51 shareholders. Facebook’s effort to stay privately traded as long as it could is the most entertaining recent example I can think of.

    It may be that I’m conflating what the Court actually ruled with what I wanted the Court to rule (reverse veil piercing), but it’s my understanding that not all closely held corporations will be able to claim that the shareholders’ religious freedom is being interfered with because of regulations that affect the company. The company has to both be closely held and an alter ego of the owners. I don’t believe that Berkshire Hathaway is reasonably Buffet’s alter ego, even if he generally gets his way.

  28. I don’t know what, if anything, you are missing, Judge. My two comments on this subject were my best effort at answering your question. Since I not only failed, it seems, to answer your question, or even, it seems, to get across that those comments were my attempt to answer your question, I have nothing more to add.

  29. I would think that the Court meant “closely held” in distinction to publicly traded corporations.

    It seems worth noting that closely held corporations would be more likely to express religious beliefs than publicly traded corporations. Not only because it would be easier to get agreement, and not only because those decisions would not take place in the public eye; if all of the shareholders are in agreement with a set of perhaps less-profitable beliefs (e.g., Hobby Lobby staying closed on Sundays), then none of the shareholders would sue the corporation for failing to maximize shareholder profitability.

  30. Chuck,

    Sure, I get the point. But, if we are talking about “free exercise” it is not at all beyond the realm of possibility that a board of directors of a publicly traded company will take a position that is religiously motivated. If so, why should the fact that the company is publicly traded diminish the religious rights of those stockholders, directors and officers who support the company’s religious views. Indeed, there are at least four publicly traded companies that take strong and explicit religious positions. All the best. RGK

  31. So I’ve thought about this a bit, and I think there are a few reasons why RFRA wouldn’t apply to the Buffet situation you describe.

    Buffet has effective control of Berkshire for day to day decisions. But ultimate control rests with the shareholders, and the board of directors they elect. Buffet gets to elect a bunch of directors as the biggest shareholder, but he doesn’t have 50%+1 of the shares, so he doesn’t have total control. So, for example, if Buffet wanted to sell Berkshire to another company, he could not do that without approval of the board.

    RFRA jurisprudence (and free exercise clause jurisprudence) as far as I’m aware requires that the religious principles in question be “sincerely believed.” Humans, and only humans, can sincerely believe religious principles. So to make a valid RFRA claim, a human being would have to certify in some fashion that:

    a.) They sincerely believe the precept in question;
    b.) They operate the business in accordance with that precept, or would but for the regulation/law in question; and
    c.) They have the express authority to operate the business for the furtherance of religious precepts, even if such precepts hinder business purposes or profit.

    The kicker here is c. To get the authority to expressly forgo long term success of the business and instead further religious principles would be the sort of thing that requires a shareholder vote. In a closely held company, that’s easy to get, and was not in question because for all 3 plaintiffs, 100% of the owners had signed onto the suits.

    Without part c of that, the business is just operating as a normal profit-seeking business, and there’s no valid claim that it’s furthering the religious practice of its owners.

    Further, for corporate shareholders, they cannot be said to sincerely believe in any religious precepts. The largest owner of BRK-B shares is the Vanguard Total Stock Market Index fund . That fund is owned by millions of people who share no common religious beliefs. Vanguard could not plausibly claim that its shareholders/owners (they’re a mutual) intend to operate the businesses they own for the furtherance of any religious precept.

    I could see a regulation being promulgated and upheld requiring that for an RFRA exemption to the contraceptive mandate, natural persons who either directly or indirectly own a majority of voting power in the corporation would have to personally affirm a, b, and c above (either having or granting the authority specified in c), and provide factual evidence of the same. In theory a public company could do that, but it’s basically impossible, especially since institutions/mutual funds would have to vote down such a proposal.

    Anyway, that’s my most sympathetic argument to closely held corporations being different. Sorry for the excessive longwindedness.

  32. It’s an attempt to constrain the genie but its unsustainable. If corporations are people, and if corporations can find god, why only closely held corporations? Walmart (owned by a single family and likely to be considered closely held) is as large as GM. Why does Walmart get first amendment protections and GM doesn’t? Their god forbids them from spending more than 125 dollars on safety features and they need legal protection!

  33. Peter H.,

    As usual, your analysis is on point and well reasoned. I could argue the fine points, but not know. My real criticism is the implicit assumption by the Supreme Court that the Justices are privileged to make distinction that are not apparent from the plain meaning of RFRA. If the Hobby Lobby cases are really an application of RFRA, then the statutory basis for distinctions between corporations “closely held” and regular corporations ought to be founded in the words of RFRA. The cynic in me suggests that the Court’s rational for making the “closely held” distinction that was not apparent from RFRA language was a sly effort avoid the fire storm that would have erupted from a comparison of, and similarity to, Citizens United vis-a-vis the Hoppy Lobby cases.

    Thanks for your engagement. All the best.

    RGK

  34. Simple: Smith was decided under the Free Exercise Clause, and Hobby Lobby was decided under RFRA.

    Smith announced the rule under the Free Exercise Clause that, roughly speaking, the government can enforce facially neutral laws of general applicability. (I’m working off of memory here, so read the case if you want the precise formulation.)

    Smith was an unpopular step backwards for religious freedom, so Congress soon passed a statute RFRA (stands for something like “Religious Freedom Restoration Act”) to more-or-less restore the Court’s earlier Free Exercise doctrine. The rule under RFRA is something like “a substantial burden on religion must be the least restrictive means to achieve a compelling government interest.” (Again, I’m working off of memory here, so this may not be the precise wording.) As RFRA stands today, it applies to federal regulations, including the administration’s implementation of the contraceptive mandate.

    So there’s nothing inconsistent between Smith and Hobby Lobby. Unless I missed something, the Hobby Lobby majority made no suggestion that the two plaintiffs had a meritorious constitutional case. Smith weakened religious rights, Congress enacted stronger protections for religious interests, and Hobby Lobby applied the statute.

  35. Oops, I replied on Young Attorney’s thread before I scrolled down and saw that you already made my point! You’re exactly right, of course.

  36. Thanks for the kind words.

    As I said briefly upthread, I don’t subscribe to the court’s reasoning here, this was just my best attempt to articulate it in the strongest light possible.

    As to why I’d reject the court’s reasoning, it relies heavily on the idea that because a sole proprietorship may make a freedom of religion claim (as in Braunfield v. Brown 366 U.S. 599, slip op at 22), that therefore a corporation can. I would dispute that because while a sole proprietor may operate a business, the business of a sole proprietor is not separate nor separable from the natural person who is the proprietor. That is, sole proprietorship is a verb, not a noun; the “business” of the sole proprietor is just the set of activities that natural person undertakes. It is not separable from that person. If the owners of Hobby Lobby want to say that their personal activities are being interfered with enough to form a RFRA claim, then they should lose the shield of separateness that gives them limited liability from Hobby Lobby, as a sole proprietor or general partner does.

  37. Seems to me that the problem goes back to Citizens United, in which a majority of the court (yes, I know that is the court for legal purposes, but it was a deeply divisive decision) held that corporations have political rights. Why not, then religious rights–how can we distinguish between freedom of speech and freedom of religion?

    Am I the only one to see an inherent contradiction, though, between Citizens United and Hobby Lobby? In Citizens United, the court (well, the majority) had to dissociate the corporation from its owners/officers/directors, who have always been free to work for or contribute to the candidates of their choice? Yet in Hobby Lobby, the court identifies the business entity with the faith of its shareholders.

    To me, this is a sign that what was afoot was ideology, more than law.

  38. Jon,

    I don’t know what the motivation might be. However, like you, I am troubled by the fact that the Court fails to adequately deal with the reason for incorporation in the first place, that is, to disassociate the owner of the business from the business itself–this remains true even if the corporation is “closely held” whatever those words mean in the corporate context or otherwise. More specifically, the owner has affirmatively elected not to be treated as a “person” under the Dictionary Act or otherwise. Having eschewed the benefits of the personal form of doing business in favor of the benefits of the corporate form of doing business, it is hard to understand why this fundamental individual v. corporate distinction is insufficient to knock out the personal religious claims of the stockholders.

    All the best.

    RGK

  39. Robert,

    It may well help if the Court meant “closely held” as limited by the Internal Revenue Service. But how can we know that without the Court applying that test to Hobby Lobby and the other plaintiffs, and I don’t see any such declaration or analysis in the opinion. But, assume I am wrong, where does “closely held” come from under RFRA? If 5 or fewer individuals decide to use the corporate form for their business with the attendant benefits, haven’t they given up their status as “persons” under RFRA? Moreover, if a publicly traded corporation (not closely held, whatever that means) has a sincere religious belief that is identical to Hobby Lobby, what rationale under RFRA suggests that the publicly traded corporation’s sincere beliefs are less worthy than Hobby Lobby’s?

    All the best.

    RGK

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  41. The majority just says this case isn’t about publicly held corporations, which is true. Judge Ginsburg said that the holding would apply to publicly held corporations anyway, which is also true. Suppose 100% of the shareholders of a publicly held corporation wishes to close on Sunday, for example, and a federal statute said businesses must remain open on Sunday. That would violate RFRA.
    It gets more interesting if there is a minority of shareholders who want to remain open on Sunday, but that is no different in principle from the situation of a minority of shareholders who oppose any other corporate policy, e.g. installing “green” power generation even though it costs more, deciding to sell porn in corporation outlets, etc.
    In practice, public corporations generally avoid controversy. I know Charles Munger, Buffett’s partner, has written about how Berkshire Hathaway used to have a program to match shareholder donations to charities, but ended it because people on both sides of the abortion debate hated the corporation matching hte other side more than they liked having their own contributions matched.

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