Get In Touch

Legal Articles

Can A Corporation Be Baptized?

American Bar Association

The Health Lawyer
March 4, 2015


How the Department of Health and Human Services' exceptions to the Contraceptive Mandate proved too wide for the Supreme Court's application of the Religious Freedom Restoration Act.

On June 30, 2014, the Supreme Court released its decision in Burwell, Secretary of Health and Human Services v. Hobby Lobby Stores, Inc.1 The case challenged the Department of Health and Human Services' ("HHS") Contraceptive Mandate ("Mandate") as applied to for-profit closely held religious corporations. The Mandate requires specified employers' insurance plans to provide coverage of preventative care and screenings for women without any cost sharing requirements.2 This includes coverage for the twenty types of contraception approved by the Food and Drug Administration, ("FDA") although only four types of "morning after" pills were challenged.

The owners of Hobby Lobby and Mardel, the Greens, and the owners of Conestoga Wood Specialties, the Hahns, believe that life begins at conception and therefore certain types of contraception included in the Mandate violate their religious beliefs. Hobby Lobby and Mardel are craft stores and Conestoga Wood Specialities is a producer of high end wood products. All of these corporations are privately held by the families and are what is referred to as "closely held" corporations. The Hahns and the Greens brought suit under the Religious Freedom and Restoration Act of 1990 ("RFRA") and the Free Exercise Clause of the First Amendment.3  The Court addressed the case under RFRA first and did not consider the case under the First Amendment. In a 5:4 opinion written by Justice Alito, the Court held that the Mandate was unlawful under RFRA as applied to for-profit closely held religious corporations. Justice Ginsberg, joined by Justice Sotomayor, Justice Breyer and Justice Kagan dissented. Justice Breyer and Justice Kagan agreed with Justice Ginsberg that the case failed on the merits and therefore did not find it necessary to consider whether for-profit corporations or their owners may bring claims under RFRA.

RFRA was a direct result of the holding in Employment Div. v. Smith in which two state workers lost their jobs for using peyote in a religious ceremony.4 The United States Supreme Court upheld their firing and, in 1993, Congress reacted by passing the RFRA, the purpose of which is to place limits on the power of Congress to impinge upon religious freedoms. RFRA prevents the government from substantially burdening a person's free exercise of religion. If the person satisfies that initial burden of proof that a substantial burden on religion exists, the government then has to show a compelling interest for the burden, in this case the Mandate, and that it is the least restrictive means of pursuing that compelling interest.

A For-Profit Corporation is a "Person" Under RFRA

In order to trigger the application of RFRA, the Court had to decide whether the for-profit corporations in this case were "persons" as defined in RFRA. Unless the context dictates otherwise, the Dictionary Act is to be consulted to determine the meaning of any Act of Congress.5 The Dictionary Act includes corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals in the definition of "person."6 The "legal fiction" of including corporations into the definition of "person" is one that is familiar in American law. Reaffirming its validity, the Court pointed out that "when constitutional or statutory rights are extended to corporations, the purpose is to protect the rights of the people who are the shareholders, officers and employees of these corporations."7

Absent HHS's ability to make a satisfactory distinction between for-profit and nonprofit corporations in the context of RFRA,HHS's prior inclusion of nonprofit corporations into the definition of "persons" under RFRA extinguished any argument that for-profit corporations are not included in the definition of "persons" under RFRA. The Court challenged HHS's proposition that "persons" included nonprofit corporations and not for-profit corporations by noting that, "no conceivable definition of the term [persons] includes natural persons and nonprofit corporations but not for-profit corporations."8 In the view of the Court, the definition of "persons" either includes only natural persons or it includes natural persons and corporations.

The significance of the Court's conclusion should not be overlooked. It relieved the Court from considering the case under the First Amendment Free Exercise Clause. Given the supposed propensity of the Court to avoid Constitutional holdings, the Court here elected to rest its decision on the RFRA. Arguably the Mandate would have survived under a First Amendment Free Exercise analysis given Justice Scalia's majority opinion in Dept. of Human Res. v. Smith which held that the First Amendment is not offended when a neutral law of general applicability has the incidental effect of prohibiting the free exercises of religion.9 In addition, under a First Amendment analysis, "accommodations to religious beliefs or observances must not significantly impinge on the interests of third parties."10   In this case, the Mandate is a neutral law of general applicability with its effects on religion being only incidental. Furthermore, the exemption from the Mandate affects "legions of women who may not share their employer's religious beliefs."11

However, because the Court concluded that under RFRA for-profit corporations were included in the term "persons," the Court continued analyzing the case under RFRA and did not apply the First Amendment.

For-Profit Corporations Can "Exercise Religion" for the Purposes of RFRA

Like the inclusion of nonprofit corporations into the definition of "persons" under RFRA, HHS's concession that a nonprofit corporation can exercise religion under RFRA foreclosed any argument that the corporate form in and of itself is prohibitive of "religious exercise." HHS tried unsuccessfully to distinguish between nonprofits and for-profits. HHS and Justice Ginsberg's dissent distinguished between "for profit" and "nonprofit" corporations given that "for profit corporations are different from religious nonprofits because they [for-profit corporations] use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers."12

The Court responded that being "for-profit" is not exclusive of promoting a "community of believers" and refused to attach any meaningful significance to whether a corporation's purpose was to maximize profit or not.13  The Court pointed to the myriad of reasons that a corporation may decide to become a for-profit entity beyond maximizing profit, such as the ability to support political candidates who perpetuate the corporation's ideology.14 In light of this, the Court concluded that the HHS's distinction between nonprofit corporations and for-profit corporations based mostly on profit maximization was too simplified. Therefore for the purposes of free exercise under RFRA, profit maximization is not a meaningful factor to separate two entities for the purposes of their ability to exercise religion.

Additionally, the Court applied the rationale used to support a nonprofit corporation's exercise of religion—that it furthers individual religious freedom—to the for-profit corporation's exercise of religion because it too furthers an individual's (the owner's) religious freedom. The Court championed Braunfeld v. Brown as the case that supports the premise that for-profit entities can exercise religion.15

In Braunfeld, two Orthodox Jewish merchants brought suit under the Free Exercise Clause in response to a Pennsylvania law that required businesses of certain types, including the merchants', to close on Sunday.16 Because the merchants were Orthodox, they closed their businesses on Saturday and claimed that preventing them from opening on Sunday was a violation of their free exercise of religion as they were forced to choose between opening on Saturday, a violation of their faith, or closing for Saturday and losing profit.17 Furthermore, violations of the Sunday closing law resulted in criminal penalties.18 Analyzing the case under the First Amendment Free Exercise Clause, Chief Justice Warren held that a secular law within the state's authority is not invalid for an indirect effect on religion unless the state may accomplish its purpose without such a burden.19  The state's interest was to establish a uniform day of rest for all workers and the Court held that the law was valid given that the state could not accomplish this purpose by a means that did not create a burden to someone.20 Thus, the Court ruled against the merchants.

As shown above, Braunfeld was rejected on the merits and Chief Justice Warren did not directly address the issue of whether making profit bars a claim under the Free Exercise Clause. The Court in Hobby Lobby relied on this lack of mention to conclude that because "the Court [in Braunfeld] never even hinted that this objective [making profit] precluded the merchants' free exercise claims," one's status as for-profit does not foreclose one's ability to exercise religion.21

But as the dissent's comparisons pointed out, analogizing this case to Braunfeld could be considered comparing apples to oranges. For example, Braunfeld involved a sole proprietorship; thus the individuals and the business were one and the same.22 In contrast, Hobby Lobby involves incorporated entities, meaning that the entity is legally separate and distinct from its owners.23 Furthermore, in Braunfeld, the free exercise claim was rejected on the merits; therefore the issue of a for-profit corporation's ability to assert a Free Exercise Claim was not adjudicated.24 But these facts were unavailing to the Court here, who asked, "If Braunfeld allowed a sole proprietorship that seeks to make a profit to assert a free exercise claim, why can't Hobby Lobby, Conestoga and Mardel do the same?"25  In addition, the Court relied on the holding from Justice Scalia's opinion in Smith that the exercise of religion involves not only belief and profession but the performance of (or abstention from) physical acts engaged in for religious reasons.26  The Court concluded that business practices that are compelled or limited by religion are firmly within the definition of religious exercise.

In refusing to recognize any meaningful difference between non and for-profit corporations for the purposes of religious exercise under RFRA, the Court's interpretation solidified that the class of plaintiffs under RFRA is inclusive of corporations of any size, public or private. Justice Ginsberg's dissent points out that "closely held" is not synonymous with small because other corporations, such as Mars, Inc. are closely held but take in $33 billion in revenue per year and employ 72,000 employees.27 However, much to the dismay of the dissent, the Court seemed to believe that its interpretation of "religious exercise" under RFRA was uncontroversial. This was shown by the Court's unwillingness to address the potential consequences of this inclusive interpretation. In the opinion of the Court, unsupported by any stated rationale, it is "unlikely" that large corporations "will often assert RFRA claims."28

This case also forced the Court to take a stance on RFRA's relationship with cases decided prior to Smith that interpreted the meaning of "religious exercise" under the First Amendment such as Sherbert v. Verner and Wisconsin v. Yoder.29

Smith involved a challenge to Oregon's controlled substance law that prohibited the use of Peyote without an exception for Peyote used for religious reasons.30 Respondents, members of the Native American Church, used Peyote for sacramental purposes and were then fired from their jobs after testing positive for the substance.31 Because they were fired for "work related misconduct," the respondents were denied unemployment benefits.32 The Court refused to apply the compelling interest test first asserted in Sherbert v. Verner, requiring a compelling government interest and implication by the least restrictive means for laws that burdened the exercise of religion, and instead held that laws that are neutral to religion and generally applicable that have the effect of burdening religion do not need to be justified with a compelling governmental interest.33 The Court cited Justice Kennedy's opinion in City of Boerne v. Flores to support the conclusion that RFRA is a stringent test that "far exceed[s] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith."34

Conversely, Justice Ginsburg's dissent endorsed interpreting RFRA as a mechanism to "restore the compelling interest test as set forth in pre-Smith cases, Sherbert and Yoder."35 In support of this proposition is Congressional expectation that, in furtherance of RFRA's restorative purpose, courts considering RFRA claims shall "look to free exercise cases decided prior to Smith for guidance."36 Justice Ginsburg also concluded that RFRA's uncontroversial passage by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives meant that RFRA did not "create… new rights for any religious practice or any potential litigant."37

Without an explicit statement in the statute, the Court was unwilling to hold that Congress intended pre-Smith case law as the standard by which to measure the exercise of religion.38 Per the Court's interpretation, the passage of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), which removed the term "First Amendment" as the qualifier for the term "exercise religion" in RFRA, further showed that Congress did not want to confine the definition of religious exercise to holdings in cases prior to Smith. Justice Ginsberg's dissent interpreted the changes under RLUIPA to increase the types of covered activities included in RFRA, but not to increase the category of potential litigants who can bring RFRA claims.39

However in the eyes of the majority Court the results would be absurd if "RFRA merely restored this Court's pre-Smith decisions in ossified form and did not allow a plaintiff to raise an RFRA claim unless that plaintiff fell within a category of plaintiffs of whom had brought a Free Exercise Claim in the category of plaintiffs entertained in the years prior to Smith."40 The Court posed the hypothetical that because a resident noncitizen had not asserted a Free Exercise claim prior to Smith, does this mean that that person is permanently precluded from asserting a claim and being included in the definition of "persons" under RFRA?41 The dissent countered that because noncitizens are flesh and blood persons, this hypothetical does not actually raise an issue with construing RFRA to only include claims brought by the type of "persons" recognized prior to Smith.42

In rebuttal to the proposition that for-profit corporations are not able to exercise religion under pre-Smith case law, the Court relied on Gallagher v. Crown Kosher Super Market of Mass., Inc., a case decided prior to Smith that rejected the corporation's free exercise claim on the merits under Braunfeld and did not address the issue of the corporation's standing to bring the claim. The Court cited Braunfeld to show that pre-Smith case law supports a corporation's ability to exercise religion.43 In addition, the Court determined that because certain Congressional statutes do exempt for-profit corporations, this shows the Congress will speak directly to instances when it does not want a religious accommodation to apply to a for-profit corporation.44

One of the concerns voiced by Justice Ginsberg in dissent in both the holding that included for-profit corporations into the definition of "persons" under RFRA and in the holding that determined that these corporations can "exercise religion" is an increase in religious objections from corporations under RFRA to laws like the Mandate. With regard to the ability to "exercise religion" the Court posited that the sincerity of belief requirement under RFRA is a reliable safeguard against a flood of religious objections in the future. The Court cited U.S. v. Quaintance for the rule that to qualify for RFRA's protection, an asserted belief must be "sincere" and then concluded that a large corporation's objection under RFRA would fail because it could not meet the sincerity requirement.45 In this case neither HHS nor the dissent challenged the sincerity of the beliefs held by the Hahns and the Greens. In response to the consideration of whether Courts were equipped to consider the sincerity of "persons'" beliefs, the Court pointed to RLUIPA. Noting that if Congress allowed the courts to consider the claims of prisoners without a concern that courts could not discern sincerity, there was no issue in regards to corporations on this point.

The certainty to gather from the above is that the Court interprets "religious exercise" under RFRA inclusively, beyond what is established prior to Smith, in respect to both the types of religious exercise that are included and also the types of "persons" who can do actions that constitute the "exercise of religion."

The Mandate Places a Substantial Burden on Hobby Lobby, Mardel and Conestoga's Ability to Exercise Their Religious Beliefs

At the beginning of the Court's substantial burden analysis it concluded that "[w]e have little trouble concluding that it does [create a substantial burden].46

The main disagreement between the Court and the dissent on this prong centered on whether the term "substantial" was one of fact as viewed from the perspective of the Hahns and the Greens or one of law; i.e., according to legal precedent is this the type of burden that the Court has held before as substantial as a matter of law?

Justice Ginsberg pointed out that treating the substantial burden analysis as a question of law was in no way a question to the sincerity of the beliefs of the Hahns and the Greens. Justice Ginsberg cited Bowen v. Roy to support the dissent's position on how the term "substantial" was to be calculated under the substantial burden analysis.47 Bowen involved a free exercise objection to the use of a Native American child's social security number by her father because of his religious belief that the use of the number would harm her spirit.48 In Bowen Chief Justice Burger's majority opinion stated that although the Court did not doubt the sincerity of the father's religious belief, the use of the social security number placed no restriction on what he was allowed to believe in.49 Thus the Court used the Constitution rather than an individual's perception as the source for determining whether the burden is substantial.50

A unique feature of Hobby Lobby is that it applied RFRA in a situation where the burden resulted from the autonomous actions of third parties: the employees and their respective doctors. This gave rise to the argument by HHS and the dissent that the burden was too attenuated to be "substantial" given that between the objectors and the objectionable result there was an autonomous actor. In response to this the Court stated that "this is not what RFRA is about, it is about whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance of their religious beliefs." While it seems that there must be a situation where the connection between the burden and the religion would be too attenuated, this was not a line that the Court was willing to draw. Asserting that any other phrasing of the issue would result in forcing the Court to determine whether the belief was reasonable. Instead the only job of the Court was to decide if the objection "reflects an honest conviction."51

It seems as a matter of precedent that the Court considers the "substantial" aspect of the analysis as something for the plaintiff to assert but is not for the Court to quantify. This, according to the dissent, "elides entirely the distinction between the sincerity of a challenger's religious belief and the substantiality of the burden placed on the challenger."52

In addressing the burden aspect of the analysis, the Court looked to the large amount of money that Hobby Lobby, Mardel and Conestoga would pay if they did not comply with the Mandate. One argument made by amici for HHS suggested that the penalty for not providing any insurance at all is actually less than providing insurance.53 Given that HHS for unknown reasons had not previously made this argument, the Court effectively refused to consider it. However, the Court mentioned this was not a plausible argument because providing health insurance is one of the religious beliefs of the Hahns and the Greens; therefore, asking them not to provide it at all would be a substantial burden, as well.

In what seemed like a refusal to consider the substantiality of the burden as a question of legal interpretation, the Court concluded that the Mandate did constitute a "substantial burden" under RFRA. The corporations were put in a position between choosing to pay large financial sums for noncompliance with the Mandate or to reject what the corporations argued were their sincerely held religious beliefs as expressed in their capacity as an employer.

The Mandate Furthers a Compelling Governmental Interest

As a consequence of the parameters of RFRA, it is not until this prong of the analysis that the interests of the individuals potentially affected by a rejection of the Mandate could be considered. The Court found fault with the HHS's use of broad terminology under the compelling interest prong. This was because RFRA "requires the Government to demonstrate that the compelling interest test is satisfied through the application of the challenged law ‘to the person'— the particular claimant whose sincere exercise of religion is being substantially burdened."54 For example, HHS couched the compelling interest in terms of "gender equality."55 However, HHS also asserted that the Mandate serves a compelling governmental interest by providing access to all FDA approved contraceptives without cost sharing.56 In addition, HHS cited Griswold v. Connecticut to support its position that all women (and men) have a constitutional right to obtain contraceptives.57

However, the Hahns and the Greens asserted that certain aspects of the Mandate went against a conclusion that the Mandate furthered a compelling governmental interest. They pointed to the exemptions for grandfathered plans and employers who employ less than 50 people from the Mandate to show that there is a large number of employers who are not required to provide plans that require contraceptive coverage without cost sharing.58 Because there are so many employers not subject to the Mandate, the Hahns and the Greens questioned how the interest could be truly compelling if HHS would allow a way around it in so many cases.59

The Court did implicitly agree that the Mandate furthered a "compelling interest" but also refused to adjudicate it further.

The Mandate is Not the Least Restrictive Means to Further a Compelling Governmental Interest

The central question under this prong can be posed as: Are existing accommodations mutually exclusive of a least restrictive means? For the Court they clearly were, while the HHS vehemently argued that they were not. The interpretation of U.S. v. Lee was a critical factor in the outcome of this question.60 Because the HHS had already "demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund insurance that was contrary to their religious beliefs" the Court did not allow HHS to rely on Lee as supportive precedent that the Mandate required cohesive and widespread participation to further the compelling interest of the government.61

In Lee, an Amish employer who employed several other Amish persons filed an objection under the Free Exercise Clause to the requirement that he file social security tax returns and participate in the benefit program.62  The Court accepted the contention that the payment and receipt of the benefits was a violation of the employer's free exercise of religion.63 However, under the compelling governmental interest prong, the Court considered the governmental interest in maintaining uniformity of the social security system.64 The Court, citing a Senate Report stating that "[widespread] individual voluntary coverage under social security . . . would undermine the soundness of the social security program," concluded that it would be almost impossible for the government to fulfill its compelling interest if it allowed voluntary participation in the system.65 Although the application of the social security requirement placed the Amish business owner in the position of choosing between his religious beliefs and prosecution, the Court did not grant the exception because of the high degree of importance of the social security system and the unavailability of a lesser restrictive means to implement it.66 Additionally, although there was an available exemption for self-employed Amish from participation in the system, the Court refused to extend this exception further, stating that "Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.67 Given the contention over whether HHS's accommodations under the Mandate foreclosed its ability to further a compelling governmental interest, it is notable that in Lee this exemption was not seen as an issue for the government's interest to be qualified as compelling.68

The Court dismissed HHS's analogy of this case under Lee, because unlike in this case where the HHS has foreclosed arguments that widespread application of the Mandate furthers the compelling interest of the government due to the accommodations and exemptions to the Mandate, in Lee "there was simply no less restrictive alternative." The Court did not address the exemption granted in Lee for self-employed Amish and why that was not a direct analogy to the exemption created by HHS for nonprofit religious corporations.

HHS's existing accommodation for nonprofit organizations that have religious objections to the Mandate allows an organization to self-certify that it religiously opposes certain contraceptives, and this shifts the cost of the objectionable contraceptives to the third-party administrator via the government. The Court did not affirmatively conclude that this approach complied with RFRA, only that "it does not impinge on the plaintiff's religious belief that providing insurance coverage for the contraceptives at issue here violates their religion and it serves the HHS's interests equally well." Under the accommodation, the effect on preventative services such as access to contraceptives felt by the female employees of companies with objections is none. The Court seemed to triumph the accommodation as it "provides greater respect for religious liberty" while also serving HHS's compelling interest equally as well.69 In addition, the Court clarified that "we certainly do not hold or suggest that RFRA demands accommodation of a for-profit corporation's religious beliefs no matter the impact that accommodation may have on… thousands of women employed by Hobby Lobby."70

Resting on the above statements that seemingly harmonized the accommodation as the perfect solution to respect the religious beliefs of companies such as Hobby Lobby, Mardel and Conestoga while also making all twenty FDA approved birth control methods available to the female employees of these corporations without cost sharing, the Court held that the Mandate was not the least restrictive means to further the compelling governmental interest. However, as will be clear below, the Court did not actually rule on the legality of the accommodation under RFRA. Therefore those who felt secure that the accommodation would be the way to provide for contraceptive coverage without any effects felt by the employees of the companies will no longer read this aspect of the Hobby Lobby decision as a settling comfort or the Court's attempt to meet HHS halfway.

Thus the Court, held that the Mandate was unlawful as applied against Hobby Lobby, Mardel and Conestoga Wood Specialties.

Conclusion: The Impact of the Ruling of the Court's Interpretation of RFRA and Holdings in Hobby Lobby is Being Contoured

The Court's opinion in Burwell, Secretary of Health and Human Services v. Hobby Lobby Stores could signify a "decision of startling breadth" or a victory for the religious freedom that is protected by the "stringent test" for government action under RFRA.71 But one thing is clear: RFRA is interpreted by the Court as a powerful statute with application to "persons" potentially beyond whom were contemplated before this opinion. Furthermore, while HHS was likely trying to avoid turbulence in implicating the Mandate with accommodations for religious nonprofits and churches built in, these accommodations arguably crushed HHS's chances of prevailing and thus rendered HHS's arguments in support of the Mandate "knapsacks" destined for a rough impact, instead of "parachutes," able to carry the day.

As mentioned above, the Court refused to consider the legality of the accommodation provided by HHS under RFRA for religious nonprofits. However, in the pending case of Wheaton College v. Burwell, Secretary of Health and Human Services,72Wheaton College applied for an injunction to permit noncompliance with the requirements of the Mandate pending the final disposition of appellate review. The Supreme Court granted the injunction, stating that HHS is enjoined from enforcing the challenged provisions of the Patient Protection and Affordable Care Act (including the Mandate) and, to meet the condition for injunction pending approval, Wheaton College need not submit the Employee Benefits Security Administration ("EBSA") 700 form to insurance issuers or third-party administrators.73 The EBSA 700 is the form provided under the accommodation for an objecting religious nonprofit that is submitted to the insurance issuer or third-party administrator if the religious nonprofit has an objection to providing contraceptives. The form is what puts the insurance issuer or third-party administrator on notice that it has the obligation to provide for the contraceptives that are objected to without a charge to the employer for these contraceptives.74

While it is unquestioned that as a religious nonprofit liberal arts college, Wheaton is able to use the accommodation to opt out of paying for objectionable contraceptives, Wheaton argued that the form itself was a substantial burden on its religious exercise. In a dissent written by Justice Sotomayor, joined by Justice Ginsberg and Justice Kagan, the injunction, granted under the All Writs Act,75 was harshly criticized because it starkly contradicted the Court's holding in Hobby Lobby that the Court did not interpret the accommodation as an impingement on religious beliefs and called into question the sincerity of the statement that the Court does not endorse the proposition that Hobby Lobby can impart its religious beliefs to the detriment of its female employees.76 The dissent asserted that under the Court's precedent an injunction is proper only if, "(1) it is necessary or appropriate in the aid of the Court's jurisdiction, and (2) the legal rights at issue are indisputably clear."77 The bar for relief under the All Writs Act is high, the dissent noting that any division in opinion in the lower courts on a matter is grounds not to grant the Writ.78

Because the merits of Wheaton's case were not before the Court and because it was unclear how Wheaton's arguments advanced a viable RFRA claim, the dissent concluded that Wheaton should not have received the extraordinary relief of an injunction. Wheaton's main argument is that under RFRA, filling out the form for the accommodation is a substantial burden to its religion because it makes it "complicit in authorizing its [third-party administrator] to provide these drugs in [its] place mak[ing] it complicit in grave moral evil."79

Two main aspects of the Court's analysis in Hobby Lobby are brought to the forefront in this case. First, the Court's interpretation of "substantial" in Hobby Lobby, which conflates burdens which are sincerely felt with burdens which meet the legal standard for a "substantial burden," leaves this prong of the analysis in the hands of the objector and opens the door for claims such as Wheaton's. Wheaton's objection does not result from a compulsion or restriction on its action but rather from the action of a third-party, the insurance issuer or third-party administrator who will pay for coverage in place of Wheaton. Given that "the law and regulations require that some entity provide contraceptive coverage," there needs to be a way for the insurance issuers and third-party administrators to gain notice of their obligation to provide the coverage in the event that a religious nonprofit makes an objection. The Internal Revenue Service and Department of Labor are using the accommodation form for just this purpose.

Second, the injunction calls into question the Court's proposition in Hobby Lobby that the accommodation "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberties."80 The fact that the effect on the preventive services received by the women employed by corporations such as Hobby Lobby would be zero under the accommodation without impinging on Hobby Lobby's religious belief was championed as key logic behind the holding in Hobby Lobby.81

The dissent called the grant of the injunction an "unwarranted and unprecedented burden on the Government's ability to administer an important regulatory scheme."82 In ordering that Wheaton need not comply with the EBSA self-certification form by sending it to health insurers and administrators pending appeal, the Court has enjoined Wheaton's compliance with what the dissent calls "the least intrusive way for the government to administer the accommodation."

The most recent development is the promulgation of regulations by HHS in light of the Hobby Lobby ruling.83 Hobby Lobby is now seeking an injunction against the enforcement of such regulations.84


The Court's recent grant of an injunction in Wheaton certainly calls into question the stability of what seemed like essential holdings in Hobby Lobby. While it is unclear whether the accommodation as it stands will now be held as unlawful under RFRA, it is certain that those with an interest in this issue will be tuned sharply to the further moves of the Court on this issue.

Submitted by Bruce Frederick Howell, J.D., M.S., with grateful thanks to Gabrielle Hansen, third year law student at Willamette College of Law, for her excellent and concise analysis.

Bruce F. Howell, J.D., M.S., is a board certified health lawyer (Texas State Board of Legal Specialization) and a shareholder in the Portland, Oregon law firm of Schwabe, Williamson & Wyatt, PC. Mr. Howell is a founder and past chairman of the Health Law Section of the Dallas Bar Association, immediate past Chair of the Health Law Section of the Texas State Bar, past Chair of the American Bar Association Interest Group on Medical Research, Biotechnology and Clinical Ethics, and Vice Chair of the American Bar Association Health Lawyer Editorial Board. He has been a member of the Board of Directors of Southwest Transplant Alliance (organ transplant organization), the French-American Chamber of Commerce, and the University of North Texas Health Science Center Institutional Review Board. He is also admitted as a Fellow of the Dallas Bar Foundation. He is a frequent writer and speaker on physician, clinical, genetic and ethical issues, and has been voted a Texas Super Lawyer as well as one of the "Best Lawyers in America" for the past five years. He can be reached at

As published The Health Lawyer, American Bar Association Health Law Section, March 2015.


1 573 U.S. ___ (2014).

2 42 U.S.C. § 300 gg—13(a)(4).

3 42 U.S.C. § 2000bb (Government shall not substantially burden a person's exercise of religion even if that burden results from a law of general applicability unless the law is in furtherance of a compelling government interest and is the least restrictive means to further the interest); U.S. Const. amend. I. These cases were filed separately but consolidated for the purposes of argument.

4 Employment Div. v. Smith, 494 U.S. 872 (1989).

5 1 U.S.C. § 1.

6 1 U.S.C. § 1.

7 Hobby Lobby, 573 U.S. ___, 18.

8 Id. at 20 (citing Clark v. Martinez, 543 U.S. 371, 378 (2005)).

9 Employment Div. v. Smith, 494 U.S 872, 878 (1989).

10 Hobby Lobby, 573 U.S. ___, 7 (Ginsburg, J., dissenting) (citing Wisconsin v. Yoder, 406 U.S. 205, 230 (1972)).

11 Hobby Lobby, 573 U.S. __ , 8 (Ginsburg, J., dissenting).

12 Id. at 22, 18 (Ginsburg, J., dissenting).

13 Id. at 22 n. 23 (citing Hobby Lobby's statement of purpose proclaiming that the company "is committed to … Honoring the Lord in all we do by operating . . . in a manner consistent with Biblical principles").

14 26 CFR § 1.501(c)(3)-1(c)(3).

15 366 U.S. 599 (1961).

16 366 U.S. at 601.

17 Id.

18 366 U.S. at 600 n. 1.

19 Id. at 607.

20 Braunfeld, 366 U.S. at 609.

21 Hobby Lobby, 573 U.S. ___, 21.

22 Sole proprietorship: a business that legally has no separate existence from its owner. Income and losses are taxed on the individual's personal income tax return, available at

23 Definition of Corporation available at

24 366 U.S. at 568 (holding that the State's regulation of conduct by enacting a general law in its power with a secular purposes is valid despite its indirect burden on religious observance unless the state may accomplish the same purpose with means that do not impose such a burden).

25 Hobby Lobby, 573 U.S. ___, 22.

26 494 U.S. 872, 877 (1990).

27 Hobby Lobby, 573 U.S. ___, 20 n. 19 (Ginsburg, J., dissenting).

28  Id.

29 374 U.S. 398 (1963) (establishing the Sherbert Test which required a compelling government interest and the least restrictive means for laws challenged under the Free Exercise Clause); 406 U.S. 205 (1972).

30 494 U.S. at 874.

31 Id.

32 Id.

33 Smith, 494 U.S. at 890.

34 521 U.S. at 533-534.

35 374 U.S. 398 (1963); 406 U.S. 205 (1972).

36 H. R. Rep. No. 103-88, pp. 6-7 (1993).

37 Brief for Senator Murray et al. as Amici Curiae 8; 139 Cong. Rec. 26178 (statement of Sen. Kennedy).

38 28 U.S.C. §2254(d)(1) (citing Federal law as determined by the Supreme Court of the United States as a standard for habeas relief).

39 Hobby Lobby, 573 U.S. ___, 10 (Ginsburg, J., dissenting) (citing H.R. Rep. No. 106-219, p. 30 (1999).

40 Id. at 27.

41 Id.

42 Id.

43 366 U.S. 617 (1961) (However as pointed out by the dissent, the suit was brought by more than one party which included both a for-profit corporation and individuals, so there was no need to address the issue of standing, therefore arguing that the Court's inference means less than it asserts).

44 Hobby Lobby, 573 U.S. ___, 28 (citing Title VII 42 U.S.C. § 300a-7-(b)(2); § 238n(a). The dissent cited § 238n(a) and its addition of healthcare entities to mean that because this was enacted after RFRA, this means that RFRA did not codify a religious protection for healthcare entities. The Court rejected this argument because the protections provided to a healthcare entity under § 238n(a) are wholly different from those provided by RFRA.

45 608 F. 3d 717, 718-719 (CA10 2010) (holding that two individuals indicted for conspiracy and possession with intent to distribute did not have a claim under RFRA because their religious beliefs were not sincerely held and were instead only a cover to pursue secular drug trafficking activities). It is curious to note that Hobby Lobby was found to have had 401K investments in drug manufacturers who make the "morning after" pills prior to and after this litigation was filed. See Mother Jones Magazine, April 1, 2014.

46 Hobby Lobby, 573 U.S. ___, 31.

47 476 U.S. 693 (1986).

48 Id.

49 Id. at 699.

50 Id. at 700-701, n. 6.

51 Hobby Lobby, 573 U.S. ___, 38. [emphasis supplied]

52 Id. at 22.

52 Brief for Religious Organizations 22.

54 Hobby Lobby, 573 U.S. ___, 39 (citing Gonzales v. O'Centro, 546 U.S. 418, 430-431 (quoting § 2000bb-1(b)).

55 Brief for HHS in No. 13-354, at 46, 49.

56 Brief for HHS in No. 13-356, at 10, 48.

57 381 U.S. 479, 485-486 (1965).

58 Commonwealth of Pennsylvania v. Dept. of Health and Human Serv., 723 F.3d 1114, 1143 (CA10 2013) (estimating that the contraceptive mandate "presently does not apply to tens of millions of people"). Plans that were enacted prior to March 23, 2010 and have not since changed in ways that substantially cut benefits or costs may not be required to cover contraceptives without cost sharing.

59 While HHS argued that grandfathered plans could not sustain forever, the agency's inability to present a date that there would be no more grandfathered plans was an aspect of its case that that the Court took issue with. Hobby Lobby, 573 U.S. ___, 11 n. 10.

60 455 U.S. 252 (1981).

61 Hobby Lobby, 573 U.S. ___, 43.

62 Lee,455 U.S. at 256.

63 Id. at 257.

64 Id. at 257.

65 Id. at 258.

66 Lee, 455 U.S. at 261.

67 Lee, 455 U.S. at 261.

68 Instead the Court classified this as Congressional sensitivity to religion. Id. at 260.

69 Hobby Lobby, 573 U.S. ___, 3.

70 Id.

71 573 U.S. ___ (2014) (Kennedy, J., concurring) (Ginsburg, J., dissenting).

72 Wheaton Collage v. Burwell, Secretary of Health and Human Services, (US S Ct. No. 13A1284)

73 Id.

74 See Little Sisters of the Poor v. Burwell, U.S. S Ct. No. 13A691 (December 31, 2013)

75 28 U.S.C. § 1651

76 Ibid. (The Court "may issue all writs necessary or appropriate in aid of [its]… jurisdictio[n] and agreeable to the usages and principles of law").

77 Wheaton, 573 U.S. ___, 4 (citing Turner Broadcasting System, 507 U.S. 1301,1303 (1993).

78 Id. at 8 (citing Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010) (ROBERTS, C.J. in chambers).

79 Emergency Application for Injunction Pending Appellate Review 11.

80 Hobby Lobby, 573 U.S. ___ (majority opinion).

81 Hobby Lobby, 573 U.S. ___ (Kennedy, J., concurring).

82 Wheaton, 573 U.S. ___ (2014).

83 26 CFR Part 54 (

84 Hobby Lobby Stores, Inc. v. Burwell et al, USDC Cause No. 5:12-CV-01000(WD OKLA).