Can Corporations Be Religious? A Critical Review of Burwell vs Hobby Lobby et al; Part 1


The Department of Health and Human Services (HHS) utilizes certain regulations of the Affordable Care Act of 2010 to determine insurance coverage for employees, whereby employers are required to provide “prevent care and screenings” to women, including contraceptives approved by the FDA, without cost-sharing (SCOTUS 1). The owners of three corporations, Hobby Lobby Stores, Mardel and Conestoga Wood Specialties, disagreed with providing such care, as four of the contraceptives approved by the DFA “prevent [an] already fertilized egg from developing further”, and such a method went against their religious beliefs (2).

‘Burwell vs Hobby Lobby et al’ found itself in front of the Supreme Court after the owners of these three corporations sued the HHS, and its associated Federal bodies, citing the Religious Land Use and Institutionalized Persons Act (RFRA), whereby the government cannot burden a person’s exercise of religion unless it has a “compelling” interest to do so and the burden inflicted is the “least-restrict method” in furthering this interest (1). The preliminary injunctions, of Hobby Lobby et al, were denied before this case was introduced and placed comprehensively in the hands of the Supreme Court. One injunction determined that Conestoga Wood Specialties could not “engage in religious exercise” under RFRA, as such a mandate does not apply to “personal capacities” and for-profit corporations were not defined as ‘persons’. Conversely, the other injunction dictated that Hobby Lobby Stores and Mardel are ‘persons’ under RFRA, and hence this insurance coverage unlawfully limited their exercise of religion. Furthermore, though such a burden on the exercise of religion can be allowed if it is furthering a “compelling” government interest, the injunction saw that the contraceptive mandate was not “least-restrictive” method in furthering this interest (2). Through these preliminary injunctions, we see the lack of coherence that brought this case to the Supreme Court, where it was now up to this body to determine whether RFRA was textually and positively complete in its application to the three corporations, or whether other principles and precedence reveal that a change is required to this literalist view.

On the question of whether the government satisfied the “least-restrictive means” standard, we must consider that the HHS cited ‘medical reasons’ as a “compelling interest” to provide health coverage to females (57). However, the court determined that this “compelling interest” did not satisfy the “least-restrictive” standard, as less restrictive methods, such as government subsidization of objectionable methods, can be and are used (58). Thus, this leaves the main point of contention as being whether Hobby Lobby can be defined as a ‘person’, and hence have the RFRA’s mandate extended to it. The court judged in favour of Hobby Lobby with a 5-4 vote, and I will now offer a critique of the concurring opinion while drawing on Ronald Dworkin’s legal interpretivism to evaluate whether the arguments of this opinion are coherent to the interpretivist’s definition of law, and then provide counter opinions through legal positivism’s system before issuing a rebuttal to such claims.

When interpreting the law, according to legal interpretivism, a judge weighs a rule by evaluating its connection to social principles and interests (Dworkin 171-173). On the question of whether Hobby Lobby et al (henceforth called ‘Hobby Lobby’) are ‘persons’, it must be noted that these corporations are for-profit, and don’t fall under the statute in the literal, textual sense. However, the principles of the statute and the precedence, provided by previous cases citing the statute, must be recognized before a determination is made. By using this interpretivism method, coherence is created in the legal system, as officials unify future and previous judgements by drawing on principles used in the past. This is exactly the course of action the concurring opinion takes, whereas RFRA was a statute designed by Congress to provide broad protection of religious liberty, and thus if it is determined that such corporations can exercise religion, though they are not textually included as having an ability to do so in the statute, then protection should follow (SCOTUS 56-57). Consequently, the concurring and majority opinions cite RFRA’s established religious protection of nonprofit corporations and the precedence involving free-exercise claims of profiting individuals (Braunfeld v. Brown, 366 US 599) to exemplify that precedence relevant to Hobby Lobby’s claims exist (22-23).

Thus, the recognized free-exercise claims of nonprofit corporations and profiting individuals provide precedence for the principle of religious liberty and are in accordance with Congress’ objective in regards to the RFRA. And seeing as Hobby Lobby falls within the umbrella of a profiting, yet ‘closely-held’, corporation, similar in the rights afforded to profiting individuals, then by legal interpretivism Hobby Lobby should be regarded as a ‘person’. Free-exercise of religion is the right to establish religious beliefs in “political, civic and economic life” (57), thus if a corporation, like Hobby Lobby, can be shown to hold such beliefs, than the overlying principles and precedence confirming this right to corporations in similar scenarios should also be conferred to Hobby Lobby. Hence, legal interpretivism supports the concurring opinion as it draws on the principles of the statute and of previous cases to determine whether the rule can be extended, and holds to Dworkin’s view that principles are also propositions of law as long as they are in accordance with previous legal doctrines (Dworkin 158-59).

In Part 2, we will evaluate the positivist views of the opposition, and whether the arguments of the concurring position hold up. Such a case will likely influence the Church-State bridge for years to come, so stay tuned.