Thoughts re the Hobby Lobby decision

The notion that a person should be forced to purchase a product that they believe to be immoral is a charmless one for which no eulogies should be read nor requiems composed. Had the Supreme Court actually killed the so-called “contraceptive mandate” in Burwell v. Hobby Lobby, decided today, 1 we should say “good riddance.”

Joyous rumors of its demise, however, are greatly exaggerated. In fact, the court’s decision did little more than observe that, having riddled the mandate with exceptions, the administration’s insistence that one more exception couldn’t be made is laughable. “Laughable” isn’t the test under RFRA, but if you can barely make the argument with a straight face, that isn’t a good sign; what RFRA actually requires is that a federal regulation that “substantially burden[s] a person’s exercise of religion” must be “the least-restrictive means of furthering [a] compelling governmental interest.” 2 And how could a mandate be the least-restrictive means of accomplishing such an interest (assuming it exists) when so many are excused from that mandate?


At any rate, one of the themes advanced by critics of the Hobby Lobby decision is that favored whipping-boy of the left, the “corporation.” True enough, the case does present that as a threshold question: RFRA applies to “persons,” so: Is a corporation, even a closely-held corporation, a valid RFRA plaintiff? But the “corporations aren’t people” argument, emaciated at the best of times, doesn’t even leave the gate here. It is emaciated at the best of times because no one seriously doubts that “corporations have rights” (a euphemism, but one that will do); had the Bush administration raided the headquarters of a left-friendly corporation—say, Apple—without a warrant, no one would suggest that Apple was unable to raise fourth amendment claims against the raid because it is a corporation rather than an individual. 3 And it is a non-starter here for two reasons: First, because the Dictionary Act expressly includes corporations in the definition of “person” where a statute does not more narrowly define it, 4 which RFRA does not, and second, because the government (and the dissent) concede that corporations can be RFRA plaintiffs, instead advancing the specious theory that a non-profit corporation (such as the O Centro Espirita plaintiff, or, in a non-RFRA context, the Church of the Lukumi plaintiff) is a person capable of exercising religion yet a for-profit corporation is not. 5

What’s more, one must ask the critics whether, in a case brought by different and unincorporated plaintiffs, they would concede the answer to the second question. Remember, Hobby Lobby presents two questions: Can a closely-held corporation be a RFRA plaintiff, and if so, can these plaintiffs prevail on these RFRA claims? Unless one concedes that an unincorporated plaintiff would prevail on the second question, what difference does the question of the plaintiffs’ identity make? It’s tough to see the rhetoric about corporations as anything more than, well, rhetoric—an attempt to sweep the case into an existing political narrative, and a smokescreen to disguise the real sentiment, viz. “the wrong side won.”

The last critics’ theme worth mentioning is the notion that the owners of these companies are “deciding for each individual employee what’s right or wrong for them.” Poppycock. Faced with such nonsense, one might think that these were wrongful-termination cases or discrimination cases à la Ledbetter v. Goodyear. The issue is whether an employer should be forced to purchase for their employees a good or service to which the employer has a serious moral objection, not whether employees can choose to use those goods or services. Notably, the critics have been unable to identify any person, ever, anywhere, who has been terminated by Hobby Lobby for using contraceptives. That failure dooms this line of argument.

A variation of this theme is a lie advanced in Justice Ginsburg’s dissent: The decision will “deny legions of women who do not hold their employers’ beliefs  access to contraceptive coverage.” 6 This rhetorical flourish is at war with the basic timeline of the cases: The court is not cutting back on a right, it is, at most, restraining the government from forging forward. To the extent that the cases might be (mis)characterized as involving the rights of employees at all, they involve a right created by the government on April 16, 2012. 7 At its outside boundary, then, even if the decision were so sweeping as Ginsburg believes (which it isn’t), the absolute most that it could possibly do would be to roll things back to the status quo ante of April 15, 2012. And so, unless one can say that “women [lacked] … access to contraceptive coverage” on April 15, 2012, one cannot comprehend how restoring that regime could “deny” them access to it. Ginsburg’s statement rests on a false equivalence between “I’m not paying for that” and “you can’t do that,” a notion that the court has always rejected, 8 and that no serious person would entertain for a moment. The statement is therefore false and Ginsburg isn’t stupid enough to believe otherwise, which makes it nothing less than a lie.


What lies beneath all these criticisms, I suspect, is a failure of empathy. Perhaps I can help. Imagine that the administration decided that insofar as meat is good for one’s health, all employers will be required to provide meat to their employees or face ruinous punitive fees amounting to tens, even hundreds of millions of dollars every year. 9 The administration then hands out generous exceptions to its donors and favored constituencies while insisting that it neither can nor will make exceptions for vegetarian employers who have an ethical objection to the production and consumption of meat.

When the vegetarian employers sue, the administration and its defenders wheel out crass populist rhetoric to complain that the vegetarians are trying to deprive their employers of a federal health benefits, that the vegetarians are trying to impose their meat-free ideology on their employees, and are improperly trying to make choices for their employees that properly belong to the employees. If the vegetarians don’t want to eat meat, that’s up to them—but they have no right to “force” that choice upon their employees, which they do, of course, by refusing to buy their employees meat, notwithstanding that the employees can still buy meat with their own money and no one has ever even alleged, let alone proven, that they were fired by one of the vegetarian employers for buying meat with their own money.

When the courts rule for the vegetarians, the administration and its defenders squeal about judicial activism.

That hypothetical is the gravamen of Hobby Lobby. If you don’t see a moral problem in that hypothetical, then (and only then) might you be at liberty to side with the government.


  1. The opinion is available online at this link:
  2. 42 U.S.C. §§2000bb–1(a), (b).
  3. Yet that is precisely the catch-22 in which the government would ensnare the plaintiffs. As the court puts it: “HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal matter, apply only to the companies and not to the owners as individuals.” In other words, the plaintiffs cannot bring suit in their corporate identity because the corporation (unlike the owners) do not have RFRA rights, but nor can they bring suit in their personal identity because the owners (unlike the corporation) are not the immediate target of the penalties. If that argument has any force in any context, a closely-held corporation is not it.
  4. See 1 U.S.C. § 1.
  5. See slip op., at 20-21.
  6. Slip op., at 8 (Ginsburg, J., dissenting).
  7. See 77 Fed. Reg. 8725 (Feb. 15, 2012).
  8. Cf. Harris v. McRae, 448 U.S. 297 (1980).
  9. If the Hobby Lobby plaintiffs “do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.” Slip op., at 2.