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Abstract

Recent cases – Burwell v Hobby Lobby Stores and Citizens United chief among them – evince a new understanding of the nature of the corporation and its place in society. Whether a corporation has rights – such as those of religious exercise – is not, however, just a question of legal interpretation. To answer this question requires a theory of group or cultural identity, that is, a theory of how a group may have “culture” separate and apart from those of the individuals that comprise it. And such a theory must address how to understand the meaning of culture when the beliefs of people within the group diverge. However, the Supreme Court’s analysis has fallen short by glossing over this step in the analysis. In Hobby Lobby, the Supreme Court indicated that the question of the religious identity of the corporation might easily be resolved by the semi-democracy of state corporate law: those shareholders and managers controlling the corporation, that is, decide the identity of the corporation. As Justice Ginsburg noted in her dissent, however, in the case of religious belief, things can get fairly gnarly. This Article critiques the Supreme Court’s oversimplified view of how group identity is formed using anthropology as its guide. This anthropological approach argues that the question of corporate “culture” is far more complex than the Court’s jurisprudence acknowledges. This approach requires rethinking the corporate rights doctrine and its assumptions about shareholder democracy. One or the other must fall – either the notion that corporations have cultural rights such as those of a “religion,” or the processes of majority shareholder voting that do not track an ingrained cultural identity.