This Article suggests that antitrust law’s concept of market power could similarly be employed in balancing the free exercise rights of a corporation or any for-profit business venture against the rights of individuals. When a business enterprise seeks a religious liberty exemption from a rights-granting law, a major factor in assessing its claim should be the degree to which it wields market power in the relevant market. If the business is a monopolist, and, a fortiori, wielding tremendous market power, its claim for a free exercise exemption should probably fail. If, conversely, the business is but a minor marketplace participant, wielding little or no market power, its claim for a free exercise exemption, if meritorious, should usually succeed. In practical terms, such an approach to religious liberty would allow corporate free exercise claims to prevail most typically in those situations in which consumers or employees had sufficient alternative choices to obtain the goods, services, or employment in question elsewhere. Under such circumstances, the need for the government to protect the rights of consumers and employees regarding discrimination or contraceptive access is at its nadir. However, when consumers or employees lack sufficient alternative choices, and are beholden to a particular corporation because of that firm’s market power, the need for government protection of consumer and employee rights is at its zenith. Here, the equality-based rights of these individuals would typically trump the religious liberty rights of the corporation.
This Article shall proceed as follows in fleshing out the proposal set forth above: Part I will trace the development and present the current reach of corporate free exercise rights. Part II will address United States antitrust law, providing first a summary of its background and general operation, and thereafter focusing upon the concept of market power and its role in antitrust jurisprudence. Part III will use the concept of market power to construct a compromise approach to the problem of corporate free exercise rights.