Hobby Lobby

01 Jul
July 1, 2014

As everyone who reads this post is no doubt aware, the Supreme Court ruled yesterday that religiously oriented for-profit corporations have religious freedom rights under the Religious Freedom Restoration Act.  As a matter of statutory interpretation, the Court’s conclusion that some for-profit corporations have religious freedom rights strikes me as fairly clearly right, as I argued in this op-ed about Hobby Lobby a few months ago.  (The Court seems likely to reach the same conclusion as a matter of constitutional law if the question whether for-profit corporations can be covered by the Free Exercise Clause arises in the future).  RFRA applies to “persons,” a term that nearly always includes corporations, not just natural persons, in legal contexts.  And no one doubts that many (non-profit) corporations are covered by RFRA.  After all, most churches are technically corporations.

The panic about the possibility that giant corporations will now start demanding exemptions for numerous laws seems wildly exaggerated.  The majority limited its holding to closely held corporations like the two corporations in Hobby Lobby, leaving open the question whether a publicly held corporation could qualify.  I think the logic of the majority’s opinion would extend to a religiously oriented public corporation, as Justice Ginsburg points out in her dissenting opinion, but I suspect that very few large corporations could demonstrate that they are religiously oriented.

In the next wave of cases, a lot will turn on courts’ application of RFRA: how they interpret the questions whether a law imposes a substantial burden on religious freedom (yes in Hobby Lobby, due to the stiff fines if the companies failed to provide the coverage); whether the government has a compelling interest in applying the challenged regulation (the majority assumed it did in Hobby Lobby); and whether the government has used the least restrictive means of achieving its objective (no, because the government could have simply paid for the four drugs in question itself, or offered the same accommodation its offered to religious nonprofits).

One interesting question is whether Hobby Lobby has implications for other areas involving the rights of corporations.  I think it does.  In this op-ed posted this morning, I speculate about possible implications for future campaign finance cases.

I’ll probably have more to say about Hobby Lobby soon …