Two pastors in Utah who were faced with jail time and/or imprisonment for not agreeing to marry a same-sex couple finessed the question by re-organizing their “Hitching Post” wedding chapel as a not-for-profit religious organization. The law was written to exempt religious non-profits, but not any for-profit.
This raises the question, can a for-profit corporation have a religious purpose? Asked differently, could there be any such thing as a religiously-motivated entrepreneur? If he started a business, could it have a religious purpose? Would it have to be a non-profit for that to be the case?
The Volokh Conspiracy blog looks at it this way:
An individual sole proprietor — of, say, a kosher deli, to use Will’s example — would clearly be able to press a religious liberty claim, whether or not she hopes the deli will make her rich (and whether or not she commits to donate her earnings to a religious charity). Does this individual lose such rights if she incorporated? Does that somehow make her religious motivations any less sincere? Any less judicially cognizable? I can’t see how. What, then, if the deli owner formed a partnership with her equally devout brother? Would that matter? And, again, if an informal partnership would be okay, why would the adoption of a corporate form and limited liability matter?
This question stands at the intersection of religion and law, where definitions are crucial but boundaries are fuzzy. Religious freedom for persons and institutions cannot be guaranteed without a legal definition of what is or is not religious.
In the United States of today (and other Western countries I’m aware of, too–though I won’t speak of what I do not know), most religious organizations have taken advantage of tax advantages afforded by non-profit status. The practice is so common that “non-profit” and “religious organization” seem inextricably joined at the hip.
Non-non-profit religious organizations
It was not always that way. It couldn’t have been. Organizations of this form are impossible where religions are unrecognized, such as Christianity in the Roman Empire before Constantine, and house-church Christianity today in China. The non-profit designation is an artifact of a particular form of tax law, which obviously hasn’t been around forever (though it might feel as if it has). That gets us to the most trivially easy answer: yes, it’s possible for a religious organization not to be a non-profit.
This has little to do with the current situation and the current question: can a religious organization be for-profit? It’s hard to see why not. First, there’s nothing in Christian doctrine to deny it, and much to illustrate its reality. The mission agency I used to work with, Cru, a non-profit religious organization, has a number of for-profit subsidiaries,* operating to sell Christian products and services. Their purpose is entirely religious; they are for-profit religious corporations.
It’s not necessary to be a subsidiary organization for this to hold; there are dozens of for-profit religious publishers, whose mission is defined as educating persons in the faith they represent. So it seems undeniable that religious organizations can be either for-profit or not-for-profit.
Tying This Discussion to the Hitching Post
Coeur d’Alene, Idaho, has offered religious freedom with respect to same-sex marriage to non-profit religious organizations. Practically speaking this makes some sense. When an organization applies for tax-exemption, it must prove its religious purpose. That makes for a clean line of definition. A for-profit religious business is just a for-profit business, as far as the law knows (or at least as far as I know about the law). Arguably that makes it difficult or impossible to allow or enforce differences in legal treatment.
Still in the case of the Hitching Post, a for-profit business run by a pair of ordained Foursquare Church ministers, it’s clear that the proprietors have a religious orientation, a religious purpose to their activities (even if not all marriages they conduct are “Christian”), and most importantly, a religiously-informed conscience.
In other words, while demonstrating an organization’s right to religious freedom might be hard in some cases, this is not one of those hard cases.
What Do We Do About It?
Governments cannot accurately assume that all for-profit corporations are non-religious, yet that is the effect of the law that could have been enforced upon the pastors in Utah, which allowed religious freedom exemptions only to not-for-profit religious organizations.
I don’t know what to do about this, other than to raise the question. I don’t have the legal background to suggest a general solution to the problem. I just want to identify the problem for what it is, and to remind readers that “religious” does not necessarily imply “not-for-profit;” nor should it be assumed in law that it does.
*The legal terminology is not technically correct but the ordinary understanding of the term is close enough.
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