God, Inc.: Hobby Lobby and Religious Freedom

Abstract

In Burwell v. Hobby Lobby Stores, Inc., the United States Supreme Court considered whether Department of Health and Human Services ("HHS") regulations requiring employers to provide their female employees with no-cost access to contraception violate the Religious Freedom Restoration Act ("RFRA"), as applied to closely held corporations. Enacted in 1993, RFRA was Congress’s reaction to the Supreme Court's decision in Employment Division v. Smith. RFRA's purpose was to restore the compelling interest test established by the Court in Sherbert v. Verner and Wisconsin v. Yoder. Beginning with Sherbert and continuing with Yoder, the Supreme Court developed a test that required courts to determine whether a governmental action was a substantial burden on a person's sincere religious beliefs; and if so, whether that action was in furtherance of a compelling government interest. Although RFRA unquestionably applied to non-profit organizations, appellate courts split on whether RFRA's protection extended to for-profit corporations. In Hobby Lobby, a divided Court held that closely held, for-profit corporations were "persons" eligible for protection under RFRA; and that the HHS regulations requiring employers to provide their female employees with no-cost access to contraception violated RFRA. As this Note will show, recognizing RPRA protection for closely-held, for-profit corporations is consistent with statutory text, a logical extension of the Court's prior cases, and consistent with legislative history.