A few weeks ago, I considered a hypothetical  about a law that bans the Kosher slaughter of animals, due to concerns about animal cruelty. (Such laws are being enacted in Europe now). Would such a law be permissible under the Free Exercise Clause, and RFRA, if the claim was raised by an incorporated, for-profit Kosher butcher? I noted that a Church of Lukumi claim would probably fail, as the law is genuinely concerned for animal welfare, and not singling out a single faith.

What about RFRA? With this new law, they can no longer slaughter animals as their religion require. I suppose they can become a non-Kosher butcher, and kill animals in accordance with the norms of animal welfare, but they would not be able to eat it. This also ignores the fact that the business was chartered for the purpose of slaughtering animals.

Under RFRA, what would the compelling governmental interest be? Protecting animal welfare. What would the substantial burden be? Prohibiting Orthodox Jews from being able to eat the only type of meat they can eat. This would seem to be a violation of RFRA. But what happens if the plaintiff raising the claim is an incorporated Kosher butcher, under the government’s theory in Hobby Lobby, where corporations can’t state claims?

Of course, individual people who eat Kosher could raise the claim, but what if the law only criminalizes the slaughter of the animals, and not the consumption of these animals? It would seem that the only party with standing would be the butcher. Now, I’m sure there are some butchers who act as sole proprietors, but I am willing to wager every Kosher Butcher from the Schecther Brothers on up takes on some corporate form. And, putting aside the mitzvah of Kosher slaughter, these butchers exist to make a profit (kosher meat is very costly!). As Adam Smith reminded us, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.”

Could the government’s position really be that no one–not a single incorporated butcher–could bring suit? I raised this question to a lawyer who litigates in the field of religious  liberty, though in Hobby Lobby opposed allowing corporations to state a claim under RFRA and the Free Exercise. I found that he hadn’t considered this hypothetical, and would only say that individual people who eat Kosher could bring suit. But that ignores the issues of the hypothetical as posed.

I was thrilled to see Justice Alito pose just this question to General Alito during oral arguments in Hobby Lobby.

JUSTICE ALITO: What about the implications of saying that no for­profit corporation can raise any sort of free exercise claim at all and nobody associated with the for­profit corporation can raise any sort of free exercise claim at all? Let me give you this example. According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane. Now, suppose Congress enacted something like that here. What would the ­­ what would a corporation that is a kosher or halal slaughterhouse do? They would simply ­­ they would have no recourse whatsoever. They couldn’t even get a day in court. They couldn’t raise a RFRA claim. They couldn’t raise a First Amendment claim.

And the Solicitor General’s answer confirmed my suspicion. First he hinted at a Church of Lukumi analysis, but this ignored the fact that the law was truly motivated for concerns about animal welfare (which in this case trumps religious liberty).

GENERAL VERRILLI: Well, I’m not sure they couldn’t raise a First Amendment claim, Justice Alito. I think if you had a targeted law like that, that targeted a specific religious practice, that ­­ I don’t think it is our position that they couldn’t make a free exercise claim in that circumstance and so

Justice Kennedy then reigned in the General who was trying to duck the hypo:

JUSTICE KENNEDY: Well, but you’re getting away from the hypothetical. Say ­­ Justice Alito’s hypothetical was that the impetus for this was humane treatment of animals. There was no animus to religion at all, which in the Church animus to the religion. So hypothetical.

JUSTICE ALITO: Exactly.

Verrilli, then said that the individual customers can raise this claim.

JUSTICE ALITO: Well, they say no animal may be slaughtered unless it’s stunned first, unless the animal is rendered unconscious before it is slaughtered.

GENERAL VERRILLI: Well, I think in that circumstance, you would have, I think, an ability for customers to bring suit. I think you might recognize third party standing on behalf of the corporation ­­ on the corporations, on behalf of customers. So a suit like that could be brought.

The General then changed the topic and talked about burdens on third parties. But Justice Breyer, getting irate at the General’s dodging of the question, continued the slaughter (rimshot!):

JUSTICE BREYER: I mean, the point that Justice Alito was making is that ­­ take five Jewish or Muslim butchers and what you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the Freedom of Exercise Clause that you’d otherwise have. Now, looked at that way, I don’t think it matters whether they call themselves a corporation or whether they call themselves individuals. I mean, I think that’s the question you’re being asked, and I need to know what your response is to it.

The General replied around the question, and basically conceded the incorporated butcher could not raise the claim:

GENERAL VERRILLI: Well, I think our response is what the Court said in Part 3 of the Lee opinion, which is that once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for ­profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere.

The government’s position is loud and clear. If you are incorporated, you have no free exercise rights under the First Amendment or RFRA. Such an absolute position didn’t pan out well in Hosannah-Tabor. I don’t think it will win the day here.

And what about churches and non-profits that are incorporated?

GENERAL VERRILLI: No. No. Religious non­profits get an accommodation in which their employees get the contraception. But we are not drawing a line between for­profit and profit.

They, again, are only given an exemption by the grace of HHS, and not by the requirements of the First Amendment or RFRA.

This reminds me of Breyer’s line of question in NFIB, where Verrilli would not answer his question about whether HHS would ever withdraw all Medicaid funding for a state. (As I discuss in Unprecedented, Verrilli did not have the authority to answer that question). And you know what? Breyer, and Kagan, voted agains the government on this position. When Breyer gets irate, he means it. So this does not bode well for the government. But for the love of John Marshall Harlan, Breyer better not write this opinion. The last thing we need is a  Breyer balancing test for RFRA.

Paul Clement alluded to this fact in his rebuttal:

They also suggested if a kosher market takes the trouble to incorporate itself, then it has no free exercise claims at all. Now, you can go back and read the Crown kosher case. I took it as common ground, that all nine justices thought that if the Massachusetts law there had forced Crown kosher to be open on Saturday, that that would be a free exercise claim notwithstanding the incorporation.

Now, I don’t suspect at all that Justice Alito, or any of his clerks read my blog post, but I am very glad that we are on the same wave-length.