Academic journal article Journal of Corporation Law

Taking Free Exercise the Second Mile: Why Hobby Lobby Fails to Go Far Enough

Academic journal article Journal of Corporation Law

Taking Free Exercise the Second Mile: Why Hobby Lobby Fails to Go Far Enough

Article excerpt

I. INTRODUCTION II. BACKGROUND    A. The Patient Protection and Affordable Care Act    B. 42 U.S. Code Section 300gg-13, Coverage of Preventive Health       Services    C. The U.S. Department of Health and Human Services' Addition of       Contraceptives to the List of Mandated Benefits    D. The Religious Freedom Restoration Act    E. Hobby Lobby's Efforts to Avoid Compliance with the       Contraceptives Mandate    F. Corporations Have Free Exercise Rights    G. The Supreme Court's Hobby Lobby Ruling and Closely Held       Corporations III. ANALYSIS 982    A. Burwell v. Hobby Lobby Stores, Inc.    B. Closely Held Corporations       1. Corporations Are Entities Separate from Their Owners and          Cannot by Themselves Exercise Religion       2. Corporations Shield Their Owners from Liability, and          Society Should Not Allow Them to Operate as          an Extension of Their Owners for Religious Purposes          as Well       3. Corporate Free Exercise Empowers Corporations to Intrude          into Individuals' Private Lives IV. RECOMMENDATION.    A. The Considerations That Motivate the Protection of Closely       Held Corporations Also Apply to Publicly Held Corporations    B. Publicly Held Corporations Are Afforded Freedom of Speech       Under the First Amendment and Should Also Enjoy the Other       Rights Extended by That Amendment V. CONCLUSION 


In 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA). (1) The new law is controversial for a variety of reasons. (2) Some feel the law goes too far, (3) while others feel it does not go far enough. (4)

In 2011, the controversy entered the religious realm when the U.S. Department of Health and Human Services (HHS), pursuant to the new law, required certain employers to provide insurance coverage for contraceptives that some believe cause abortion. (5) This new requirement created conflict for certain closely held corporations, the owners of which felt they would violate their religious beliefs if they were to support abortion in any way. (6) The most notable of these companies was Hobby Lobby, Inc. (Hobby Lobby). (7)

In an effort to avoid both the violation of sincerely held religious beliefs and the imposition of millions of dollars in fines, Hobby Lobby and other closely held corporations filed suit against the government. (8) Hobby Lobby and other plaintiffs argued that the Religious Freedom Restoration Act (RFRA) protected them from enforcement of the contraceptives mandate because the mandate was a substantial burden on the owners' free exercise of religion. (9) Ultimately, the Supreme Court agreed, and rejected the government's assertion that RFRA cannot apply to for-profit corporations. (10) The Court restricted the reach of its holding to closely held corporations, however, prompting some to ask, what exactly is a closely held corporation? (11)

This Note examines a slightly different question; specifically, whether there is any compelling reason not to extend the Hobby Lobby ruling to corporations of every size and type. Part II introduces the ACA, RFRA, and the Hobby Lobby case itself. Part III explores the arguments for and against affording RFRA protection to corporations. And finally, Part IV recommends that either the Court, Congress, or both, extend Hobby Lobby (12) to all corporations.


This Part first discusses the ACA, its purpose, and some of its effects; this is followed by a summary of the ACA provision that calls for the coverage of preventive health services. This Part next discusses the so-called "contraceptives mandate" established by HHS. This Part then explores RFRA and Hobby Lobby's efforts to avoid compliance with the contraceptives mandate by using that Act as a shield. This is followed by a discussion of whether corporations have Free Exercise rights, and a summary regarding the ambiguity as to the Court's Hobby Lobby ruling vis-a-vis the definition of a "closely held" corporation. …

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