Freedom of Corporate Religion?

A number of cases now working their way through the US court system and attracting a great deal of commentary, some of which Josh Blackman summarizes and/or links to in this post, ask an interesting question: can a corporation challenge a requirement that it provide its employees with health insurance covering, among a great many other things, contraception, on the basis that this infringes its (owners’) religious freedom (the so-called “contraception mandate”)? A corporation, of course, does not worship, or believe anything. So can it be entitled to exercise a religious right? I am not qualified to answer this question as a matter of US law, but I thought I’d say a few words about how it might play out in Canada.

Could a Canadian corporation challenge a law on the basis that it infringed religious freedom? The answer seems to be sometimes yes, and sometimes maybe. The foundational case on freedom of religion, and indeed one of very the first Charter cases, was  R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. As the style of clause makes clear, the respondent was a corporation. It was accused of operating a store on a Sunday, contrary to the Lord’s Day Act, R.S.C. 1970, c. L‑13. It claimed that the statute was contrary to the Charter’s guarantee of freedom of religion because it enforced a Christian religious observance. And sure enough, the government said that that didn’t matter, because as a corporation, Big M could not possibly have a right to freedom of religion. Justice Dickson (as he then was) rejected this argument:

Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of no force or effect.

…

The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s. 2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue. (Emphasis mine)

But there is a very important qualification:

 As the respondent submits, if the legislation under review had a secular purpose and the accused was claiming that it interfered with his religious freedom, the status of the accused and the nature of his belief might be relevant: it is one thing to claim that the legislation is itself unconstitutional, it is quite another to claim a “constitutional exemption” from otherwise valid legislation, which offends one’s religious tenets.

This possible exception―possible, because Justice Dickson is not deciding that the status of the claimant is relevant to, much less dispositive of, exemption claims―might actually be much more important than the rule in Big M.  That case was probably unique; Canada is not about to re-enact the Lord’s Day Act, or any other law enforcing or prohibiting religious observances. Claims for religious exemptions, by contrast, have arisen in the last few years, and will continue to arise.

One such case was Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, in which Hutterites tried to obtain an exemption from the requirement that their drivers’ licences bear their pictures, which contradicted their interpretation of the Second Commandment. Unfortunately, it is not entirely clear what sort of entity the colony is, legally speaking―is it a corporation or something else? I am guessing though that it is a corporation of some sort, since it sued in its own name. Indeed, it is remarkable enough that no individual Hutterite was a party in the case, considering that it is individuals who applied for drivers’ licences and were required to submit to picture-taking contrary to their faith. Still, that was not at all an issue in the case. Perhaps this is simply because a violation individuals’ religious freedom was so obvious (though the majority held that it was justified under s. 1 of the Charter). Perhaps the Colony had a sort of implicit public interest standing, if such a thing can exist. Perhaps the key is that even if the Colony is, legally, a corporation, it is an obviously religious one, in a way that most ordinary commercial corporations are not. The most we can say with confidence is that this case does not confirm Justice Dickson’s caveat about corporations seeking religious exemptions; but nor does it conclusively put that caveat to rest.

So much for the law, as best I understand it. I will try to have some more theoretical comments on the issue in the coming days.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota