Do business corporations have free exercise rights? This question has become critically important in recent challenges to the Affordable Care Act’s so-called “contraception mandate.” A host of businesses selling ordinary goods and services claim that they cannot be compelled to provide employees with insurance that covers contraception. Courts have divided over whether corporations can assert rights of conscience, and existing theoretical accounts fail to provide guidance on this question. This Article offers a new normative framework for evaluating corporate claims of conscience. Drawing on theories of conscience and collective rights, it develops a “social theory” of conscience that explains how individual moral identity is formed within associations and, consequently, how the social structure of those associations can support institutional claims for legal exemptions. The social theory of conscience has direct implications for free exercise doctrine. For an institution to assert a valid claim, it must be a constitutive community, such that individual members regard the collective as intimately tied to their sense of self. Some institutions, like churches and other religious organizations, fit comfortably in this category. But the legal, social, and economic norms that govern modern business practice pervasively undermine the formation of tight personal connections to for-profit corporations and thereby erode the normative basis for institutional legal exemptions. Free exercise doctrine should therefore resist corporate claims to exemptions from the law. 

James D. Nelson is the Vinson & Elkins Professor of Law at the University of Houston Law Center, where his scholarship focuses on the intersection of corporate, employment, and constitutional law. His research delves into the rights of speech, religion, and association within the workplace. (law.uh.edu)

Before joining the University of Houston, Professor Nelson was a Postdoctoral Fellow at Columbia Law School, where he was involved with the Millstein Center for Global Markets and Corporate Ownership. He also served as a Lecturer-in-Law and Associate-in-Law at Columbia. He earned his J.D. from the University of Virginia School of Law, where he was Editor-in-Chief of the Virginia Law Review and received the Roger and Madeleine Traynor Prize for best written work. Following law school, he clerked for the U.S. Court of Appeals for the Fifth Circuit and worked as a trial attorney at the U.S. Department of Justice. (law.uh.edu, law.uh.edu)

Professor Nelson's legal scholarship has been published or is forthcoming in leading journals such as the Yale Law Journal, Columbia Law Review, Michigan Law Review, and Virginia Law Review. His notable works include "Disestablishment at Work" (Yale Law Journal, 2025) and "Second-Order Decisions in Rights Conflicts" (Virginia Law Review, 2023). He has also co-authored several pieces with scholars like Elizabeth Sepper and Micah Schwartzman. (law.uh.edu)

In recognition of his contributions, Professor Nelson has received the All-University Award for Excellence in Research and Scholarship and the All-University Teaching Excellence Award at the University of Houston. He has served on the Executive Committees for the AALS Section on Business Associations and the Section on Law & Religion. (law.uh.edu)

For a comprehensive list of his publications and academic contributions, you can visit his faculty profile at the University of Houston Law Center. (law.uh.edu)(law.uh.edu)