Private: Hobby Lobby: Religious Liberty for the Elite

by Caroline Mala Corbin, Professor of Law, University of Miami School of Law

There is much to lament in the Supreme Court’s Burwell v. Hobby Lobby decision, which held that first, closely held for-profit corporations like Hobby Lobby may bring religious liberty claims under the Religious Freedom Restoration Act (RFRA), and second, that the contraception mandate – the requirement that health insurance plans provide contraception at no additional cost – violated Hobby Lobby’s RFRA rights. Thanks to the decision, owners who are religiously opposed to contraception may exclude it from their employees’ health plan.  For several reasons, the winners are corporate owners, and the losers are all the men and women who must work for them. 

First,  Hobby Lobby allows owners of for-profit corporations to have their cake and eat it too. One of the main reasons people incorporate their businesses is to gain the protection of limited liability, which shields owners from the liabilities of their corporation. For example, the debts of the corporation are not the debts of the owners. After Hobby Lobby, owners are considered separate and distinct from their corporations for purposes of limited liability, but one and the same for the purposes of religious rights. In other words, the owners and corporations are alter-egos when it is convenient, and not when it is not. That is not how the law is supposed to work.

Second, at the same time, Hobby Lobby virtually ignores the rights of employees. The Justices could barely bring themselves to acknowledge that a religious exemption created any kind of burden on the thousands of workers who just lost their contraception coverage. Instead, in a footnote (a placement in keeping with the Court’s marginalization of employees), the Court characterized the contraception mandate as a burden but a potential religious exemption as merely the loss of a benefit. Apparently, only corporate owners are burdened. The bottom line is that the owners’ rights are privileged over their workers’ rights. Never mind that health insurance is part of employees’ compensation, and owners should not be able to dictate how employees spend their own earnings. And never mind that sincere religious obligations can point towards contraception use as well as away from it, as people may have faith-based reasons for limiting their family size.

Third, Hobby Lobby basically rewrote RFRA to make it much easier for religious objectors to prevail. The Court essentially changed the “substantial burden” test to the “we defer to the plaintiffs” test. Under RFRA, religious exemptions are granted for “substantial burdens” on religion. The Court, however, seemed to hold that if plaintiffs say as a matter of religion that it imposes a substantial burden, and they are sincere, then as a matter of law it imposes a substantial burden. It did not matter that Hobby Lobby’s claim was quite attenuated. The owners, who are religiously opposed to abortion, were not complaining that they had to use abortifacients. Rather, they were complaining that including certain drugs in their health care plans meant they were facilitating other people’s abortions.  Facilitation, however, has no logical stopping point. Before long, the for profit corporations will join the nonprofits in complaining that signing a piece of paper allowing them to opt out of the contraception mandate also facilitates the sin of abortion. There ought to be some objective limits to the religious burdens the state must contemplate accommodating, yet Hobby Lobby failed to provide any.  

Hobby Lobby allows owners to force their religious views onto workers who may hold entirely different beliefs. Unfortunately, because Hobby Lobby has essentially read out the requirement that the religious burdens be “substantial,” the decision opens the door to further religious exemptions for the benefit of corporate owners at the expense of their employees. It would be a shame if religious liberty becomes another luxury reserved for those at the top.

Reproductive Rights