Issue 7: Burwell v. Hobby Lobby


This is the seventh issue of “The Supreme Court is Usually Badass”, where I discuss a Supreme Court case and my opinion on its effects throughout U.S. History. I would also enjoy others to participate and discuss the decisions of the case, if one feels so inclined.

Sylvia Burwell, Secretary of Health and Human Services, et al., Petitioners v. Hobby Lobby Stores, Inc., Mardel, Inc., David Green, Barbara Green, Steve Green, Mart Green, and Darsee Lett; Conestoga Wood Specialties Corporation, et al., Petitioners v. Sylvia Burwell, Secretary of Health and Human Services, et al. 573 U.S. ___ (204) (,


On November 16, 1993, after having been introduced by Representative Chuck Schumer (D-NY), unanimously (by voice) approved by the House of Representatives and passing the Senate (97-3), President Bill Clinton signed the Religious Freedom Restoration Act of 1993 (Pub. L. No. 103-141, 107 Stat. 1488) into law (henceforth referred to as RFRA). The circumstances leading up to its near universally-approved passage are as follows:

Sherbert v. Verner, 374 U.S. 398 (1963)

After a member of the Seventh-day Adventist Church was fired for refusing to work on Saturday due to her religious beliefs, she was denied unemployment benefits. The Supreme Court applied strict scrutiny and held, in a 7-2 decision, that denying Sherbert’s claim (for unemployment) was an unconstitutional burden on her free exercise of religion; thus, establishing the Sherbert test, which follows:

  1. The claimant has a sincerely held religious belief.
  2. The proposed Government action has a substantial burden on the claimant’s ability to act on said belief.
  3. If (1) and (2), the government must prove:
    a. The proposed Government action is in furtherance of a compelling state interest.
    b. The Government has pursued such action in the manner least restrictive to religion.

Wisconsin v. Yoder, 406 U.S. 205 (1972)

Three Amish students were taken out of school at age thirteen (13) due to their parents’ religious beliefs (too much knowledge endangers salvation), against the laws of the State. In a unanimous decision, and affirming the application of the Sherbert test, the Supreme Court ruled that the State was in violation of the Establishment Clause of the First Amendment of the U.S. Constitution.

Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872 (1990)

Two members of the Native American Church were fired after having ingested peyote as part of a religious ceremony; subsequently, they were denied unemployment benefits, as the state claimed the two were fired for good reason. In the 6-3 decision, Justice Scalia delivered the opinion of the court, which threw dirt in the face of the Sherbert test and ruled that “neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment.” (this is somewhat mockingly quoted by Ginsburg post)


Congress, butthurt by the complete dismissal of the Sherbert test by the U.S. Supreme Court, sought a constitutional solution to codifying the Sherbert test as law; thus, the Legislative and Executive passed the RFRA. This law was affirmed in City of Boerne v. Flores, 521 U.S. 507 (1997); however, the High Court ruled the RFRA could not be applied to state laws. After the passage of the RFRA, the Supreme Court would, henceforth, be legally required to apply the Sherbert test to cases of religious freedom (unless of course, the RFRA is deemed inadequate; i.e., SCOTUS rules it unconstitutional).


On March 23, 2010, after having narrowly passed the House of Representatives and closely passing the Senate, President Barack Obama signed and so enacted the Patient Protection and Affordable Care Act (Pub. L. No. 111-148, 124 Stat. 119-1025) which, in relevance to this document, gave the Health Resources and Services Administration (part of the Department of Health and Human Services) the authority to mandate the preventative care covered for women in employer-based health plans. With consultation from the Institute of Medicine and others, the HRSA decided that all twenty (20) FDA-approved contraceptives should be covered without cost sharing (i.e., without co-pay). Corporations found in violation of this portion of the statute are fined $100 per day per affected employee.

Hobby Lobby is an arts and crafts company, founded by self-made billionaire David Green and owned by his Evangelical Christian family. Hobby Lobby sued (having been in noncompliance and, subsequently, fined) in September of 2012; the U.S. Court for the Western District of Oklahoma denied Hobby Lobby’s request for preliminary injunction. In March of 2012 the U.S. Court of Appeals for the Tenth Circuit ruled that Hobby Lobby Stores, Inc. is a person who has religious freedom. In September of the 2013, the U.S. Supreme Court granted certiorari. Hilarity ensues.

The U.S. Supreme Court heard the oral arguments for Burwell v. Hobby Lobby on March 25, 2014.

Synopsis of Proceedings

The Solicitor General, Donald B. Verrilli Jr., argued the case for the respondents, while Paul D. Clement argued for the petitioners. Nothing out of the ordinary occurred.

Questions before the Court (in application of the Sherbert test)

  1. Can corporations be considered “persons” via reading of the RFRA or the Establishment Clause?
  2. Assuming (1), does the claimant have a sincerely held religious belief (not argued, as SCOTUS has never set a precedent of ruling on the legitimacy of a claim of sincere beliefs)?
  3. Assuming (2), does the contraceptive mandate substantially burden Hobby Lobby’s beliefs?
  4. Assuming (3), does the contraceptive mandate provide the least restrictive means of serving a compelling state interest?


On June 30, 2013, the High Court ruled in a 5-4 decision that Hobby Lobby, Inc. is a person (stressing the fact that Hobby Lobby is a “closely-held” corporation) as read in the RFRA (the Establishment Clause was not opined) who is substantially burdened by the compelling state interest of providing contraceptives without cost-sharing; in addition, the Court ruled that the PPACA mandate was not the least restrictive means of serving the aforementioned state interest.

In an eloquently written opinion, Justice Samuel Alito (joined in full by Roberts, Scalia, Kennedy and Thomas) touched on each of the questions mentioned. Part III-C of Alito’s opinion discussed that, due to the Dictionary Act, “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals…unless the context indicates otherwise.” In addition, he goes on to point out that, in most states, “every corporation, whether profit or not for profit” may “be incorporated or organized…to conduct or promote any lawful business or purposes”; thus, the Court believes that, having been defined as a person in the Dictionary Act (in addition, the majority ruled that RFRA did not provide differing context), Hobby Lobby has a right to free exercise of religion.

Alito goes on to support the Court’s case that the contraceptive mandate is both substantially burdensome and a compelling government interest (but that the ACA’s wording is not the least restrictive means of achieving that interest). However, the majority offers two solutions for the U.S. Government: (1) pay for contraceptives for everyone yourself (i.e., the U.S. Government) or (2) set up an “accommodation” similar to the one currently applied non-profits. Finally, the majority seeks to assuage the dissent’s concerns by stating:

“In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”


Justice Ginsburg authored the dissenting opinion, joined (mostly in full) by Sotomayor; Breyer, Kagan (all but Part III-C-1 [the part concerning corporate “personhood”]). Ginsburg begins her factually unmatched opinion with a bold statement:

“In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

In general, she makes an effort to deliver decisive blows to the majority opinion on a point-by-point basis. First, she reminds the reader that Congress specifically shot down the “conscience amendment” to the ACA, which sought to provide exemptions to the contraceptive mandate to religiously burdened corporations. In addition, she notes that “[c]ongress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.” Her most compelling argument concerns the “personhood” with regard to RFRA that the majority opinion has applied to corporations. She makes the point which has been affirmed time and time again by the High Court that “[a]ccommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.” In relaying this point, she quotes Chafee by reminding the reader that “[y]our right to swing your arms ends just where the other man’s nose begins”; this, as if to say, that all rights of our land are bestowed upon an individual up to (but not including) said right’s infringement of the same rights of others. In this, she clearly draws the argument that the proverbial “noses” of the women who work for religiously burdened corporations are no longer protected from the proverbial “arms” of the “corporate person”. She muses that over 200 years ago, Chief Justice John Marshall stated that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Finally, points out that “[b]y incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation.”

Ginsburg goes on to repudiate the claims made by the majority opinion, which she accomplishes with much fervor (there are good arguments against the majority’s least restrictive suggestions); however, it is apparent that the crux of the issue for her lies in the “corporate personhood” establishment made by the majority in the area of free exercise of religion, reminding us that she believes “in keeping the courts ‘out of the business of evaluating the relative merits of differing religious claims.’” (United States v. Lee, 455 U.S. 252 [1982]). In the end, the dissent’s primary concern is that the U.S. Supreme Court has ruled that corporations are persons with the right to free exercise of religion; however, the Court has left the door open for any religious claim to be made by a corporation under this ruling, which will result in the U.S. Supreme Court eventually “favoring one religion [or religious practice] over another.” She closes by stating: “[the] Court, I fear, has ventured into a minefield.”

To drive the point home, Breyer and Kagan wrote a one paragraph dissent, simply stating their disdain for “corporate personhood”: “We need not and do not decide whether either for-profit corporations or their owners may bring claims under [RFRA].”


Only the future will tell!