Hobby Lobby is not a person

In a regrettable 5:4 decision[1], the Supreme Court of the United States ruled in Burwell v. Hobby Lobby that closely held for-profit companies can be exempt from a law to which they object on religious grounds. The majority opinion delivered by Samuel Alito maintains, in essence, that the Department of Health and Human Services contraception mandate substantially burdens the free exercise of religion. Alito also wrote that the government’s penalty on Hobby Lobby would have the result that “companies would face a competitive disadvantage in retaining and attracting skilled workers.” Skilled workers? Apparently Justice Alito has never shopped at Hobby Lobby.

Justice Ginsburg wrote the dissent with Justices Sotomayor, Breyer, and Kagan concurring.

“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 the Court’s view, RFRA (Religious Freedom Restoration Act) demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith — in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.”

The Court is wrong.

Corporations are not people. Perhaps Texas, the Execution Capital of the US[2], would like to put one to death. Hobby Lobby is not a person. The Bill of Rights is addressed to people not corporations. Corporations don’t have religious beliefs. They make stuff, do stuff, and sell stuff. They employee people - people against whom they are not permitted to discriminate. (Or so we thought.)

Even more problematic is that the decision grants “closely-held for-profit companies” rights that ordinary individual citizens do not have. I cannot claim exemption from any law on the grounds of religious belief. But the owners of Hobby Lobby and its ilk can cry that their imaginary rights to Free Exercise are infringed; and they are granted an exemption.

To make matters substantially worse, the Supreme Court issued a temporary injunction barring the Federal government from requiring Wheaton College to fill out a form certifying that it has a sincerely held religious objection to contraception services. Such emergency injunctions are rarely granted by the Supreme Court and then only when rights are clearly infringed. In this case, it was Justice Sotomayor who wrote a scathing dissent[3]:

“Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution…The Court grants Wheaton a form of relief as rare as it is extreme: an interlocutory injunction under the All Writs Act, 28 U. S. C. §1651, blocking the operation of a duly enacted law and regulations, in a case in which the courts below have not yet adjudicated the merits of the applicant’s claims and in which those courts have declined requests for similar injunctive relief.”

“The sincerity of Wheaton’s deeply held religious beliefs is beyond refute. But as a legal matter, Wheaton’s appli- cation comes nowhere near the high bar necessary to warrant an emergency injunction from this Court. For that reason, I respectfully dissent.”

“Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened – no matter how sincere or genuine that belief may be – does not make it so”

Indeed. This is precisely why the wall of separation must be high and impermeable. How can the courts test the sincerety and validity of a belief that a person or institution claims to hold as a religious belief? Since the task is impossible, it is best to afford no such exemptions. Perhaps it is best, then that each of us lives in accordance with our own values and preferences recognizing that those values and preferences are not necessarily shared by all and that we can use neither law, nor force, nor any other form of coercion to impose them on others.

These two decision undermine the wall of separation; and the authority and prudence of the Court is underminded when such capricious applications of emergency injunctive relief of a duly enacted law are granted.

What an upside-down world we live in when commercial enterprises enjoy rights that private citizens do not.


  1. Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al., No. 13-354 Link

  2. In fairness, Texas is not the execution capital of the US when per capita figures are considered. Oklahoma kills more of its citizens per capita than any other state. But in absolute terms, don’t mess with Texas.

  3. Wheaton College v. Sylvia Burwell, Secretary of Health and Human Services, et al. Link