Hobby Lobby Stores Research Articles

Risk, Resistance and Resilience: Birth Control Policy in the Wake of Dobbs

ABSTRACT The US Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization has potentially profound implications for contraception. Contraceptives came up frequently in oral arguments and constitutional protections for abortion and birth control are fundamentally linked (Griswold v. Connecticut, 381 US 479, 1965). Moreover, in recent decisions (Burwell v. Hobby Lobby Stores, Inc. 573 US 682, 2014) the court has endorsed the position of some religious groups that certain forms of contraception are “abortifacients,” essentially a form of abortion. This legal blurring of distinct scientific boundaries between abortion and birth control provides legal pathways for birth control restrictions. That said, in the immediate wake of Dobbs, policy change on birth control has been limited, media coverage on the risks posed to birth control have been scarce, and public support of birth control access has remained robust. We review the current landscape of birth control politics and policy after Dobbs, including state and federal policy responses, elite rhetoric, interest group advocacy, media coverage, and public opinion. Our analysis contributes to an emerging literature on birth control politics and policy.

Objeción de conciencia empresarial y “guerra de religión” en los Estados Unidos. Reflexiones a partir de Burwell v. Hobby Lobby Stores, Inc.

En este trabajo se analiza el debate actual existente en la doctrina norteamericana sobre la objeción de conciencia empresarial. Para ello, después de resumir la evolución de la doctrina judicial de la Free Exercise Clause en relación a la objeción al cumplimiento de obligaciones legales, nos centraremos en la última jurisprudencia de la Corte Suprema, en el caso Burwell v. Hobby Lobby Stores, Inc., donde, sobre la base de la Religious Freedom Restauration Act federal, la mayoría del Tribunal reconoce el derecho de las empresas a eximirse de costear, dentro del seguro de sus trabajadoras, aquellos tratamientos anticonceptivos contrarios a su ideario religioso. Después de llevar a cabo una lectura crítica de esta jurisprudencia, en este trabajo se intentará valorar cuál puede ser la influencia de Burwell v. Hobby Lobby Stores, Inc. en el debate más general y actual sobre si el derecho a la libertad religiosa de los empresarios puede ser un título legítimo para discriminar en el ámbito de prestación de sus servicios dentro del mercado.

Modernism and the Meaning of Corporate Persons by Lisa Siraganian

Reviewed by: Modernism and the Meaning of Corporate Persons by Lisa Siraganian Geoffrey R. Kirsch Lisa Siraganian, Modernism and the Meaning of Corporate Persons. Oxford UP, 2021. v + 270 pp. The primary subject of Lisa Siraganian’s Modernism and the Meaning of Corporate Persons is not a literary but a legal fiction: the artificial personhood of corporations as legal entities endowed with rights and duties of their own. Recently placed in bad eminence by the Supreme Court’s decisions in Citizens United v. Federal Election Commission (2010) and Burwell v. Hobby Lobby Stores (2014), corporate personhood is often encapsulated by critics and proponents alike with a question-begging slogan: corporations are people. In truth, the corporate fiction is no less ambiguous than the literary fictions that Siraganian explores. Is the corporation best understood as an association of individual people, or as an autonomous entity distinct [End Page 803] from its members? Can it form, communicate, and act on intentions in the same manner as a flesh-and-blood person? And how should its differences from natural people inform its legal status? Siraganian’s argument rests on a familiar leitmotif in law and literature scholarship: without the irritable reaching after fact and reason necessary to adjudicating legal responsibility, literature can better probe and problematize the ambiguities of the corporate person. She makes a compelling case for the particular relevance of American modernism, her area of expertise. Not only did modernism roughly coincide with a period of intense debate over corporate personhood among legal scholars; but it also, with its many coteries and (as enunciated most famously by T. S. Eliot) its aesthetic of “impersonality” (33), posed similar tensions between the individual and the collective. Above all, Siraganian writes, modernist writers were “operating a veritable literary and cultural laboratory on the question of collective intention” (30). Intention serves as Siraganian’s primary bridge from the legal to the literary, as she posits a tacit equivalence between the corporation and the modernist art-object by way of a single ontological problem: “how minimal could intention be and still be sufficient?” (31) The relation of the modernist art-object to its creator, Siraganian suggests, resembles that of the corporation to its actions: if a found poem or a Duchamp “Readymade” could offer sufficient indicia of creative intention to constitute art, so even the smallest tokens of collective action and expression might suffice to endow a corporation with mind, intention, and personality. This interest in collective intention, Siraganian suggests provocatively, in turn implies a “genetic connection” (34) between naturalism and modernism: where the latter movement formalizes the problem of collective intention, the former thematizes it. This genealogy helps to justify the fact that in a book titularly about modernism, the two most wholly convincing chapters actually focus on classics of the naturalist canon. While Siraganian is not the first critic to propose corporate personhood as a crux of Frank Norris’s The Octopus and Theodore Dreiser’s The Financier, her readings of these two great novels of business are at once original and eminently persuasive. As Siraganian contends in the first chapter, The Octopus dramatizes “the epistemological difficulty of knowing a corporate person’s meaning” (44). Norris’s farmers mistakenly rely on the “solemn pledges” (68) made in person by individual railroad company agents, when in fact the corporation has carefully avoided entering into any legally enforceable contracts with them. Siraganian shrewdly links Norris’s interest in corporate intention and expression to both the jurist Oliver [End Page 804] Wendell Holmes, Jr. and the philosopher Elizabeth Anscombe: all three thinkers, she explains, conceptualize intent not as a subjective mental state but as a quality of particular actions and expressions. This objective, external redefinition allows for the possibility of corporate intention and meaning, but also produces a cacophony of external signs purporting to represent the corporation’s speech. Chapter 2 examines this unfortunate consequence, first by scrutinizing the equation of corporate money with speech that underwrote Citizens United and then, somewhat anachronistically, by highlighting the incoherent, commodified nature of “corporate speech” (83) in F. Scott Fitzgerald’s late-career writings on Hollywood. Chapter 3 in turn moves from speech and intention to the broader question of...

Commentary on Burwell v. Hobby Lobby

Burwell, et al., v. Hobby Lobby Stores, Inc., et al., decided in 2014, broke ground in its unprecedented articulation of religious person-hood rights for commercial entities, posing challenges to reproductive justice and the foundations of anti-discrimination law. The case addressed whether the Affordable Care Act’s (ACA) contraceptive mandate should yield to a Religious Freedom Restoration Act (RFRA) claim by for-profit corporations objecting on religious belief grounds to providing health insurance coverage for contraception to employees. Concluding that the corporations seeking exemptions were “persons” for free exercise purposes under RFRA, the Court held that U.S. Department of Health and Human Services (HHS) regulations interpreting the ACA contraceptive coverage requirement violated RFRA by substantially burdening the exercise of religion. The Hobby Lobby re-write by Anthony Kreis underscores the far-reaching implications of the original decision by connecting the reproductive health access questions at stake to the day to day conditions in women’s lives and broadly systemic impacts of the Hobby Lobby decision for marginalized communities. In so doing, the rewritten opinion sets the stage for deeper consideration of Hobby Lobby’s challenge to the health and well-being of women, communities of color, lower-income communities, and other marginalized groups.

The Monster Unleashed: How Hobby Lobby Threatens the Freedom of Employees to Practice Religion

In this Essay, I argue that the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., threatens the free-exercise rights of employees whose religious convictions differ from those of their employers.

What Trademark Law Is Learning from the Right of Publicity

In 2006, Stacey Dogan and Mark Lemley published the now classic article “What the Right of Publicity Can Learn from Trademark Law.” There they urged us to “[r]econceiv[e] the right of publicity as a trademark-like right,” particularly because “looking at the right of publicity through the lens of trademark law offers logical ways to limit the right.” Right of publicity law’s failure to incorporate trademark law’s limitations had resulted, they argue, in the right of publicity functioning as “a mutant version of trademark policy . . . .” I argue here in response that regrettably, notwithstanding Dogan and Lemley’s good advice, the reality is that it is trademark law that has become more like right of publicity law. Indeed, trademark law is in danger of becoming a “mutant version” of right of publicity policy. To defend this claim, I will first briefly survey the conventionally-recognized similarities and differences between trademark law and right of publicity law. I will then propose a more complicated—and, I think, more accurate—comparison between the two areas of law and argue that they are converging in many important ways, giving us the worst of both worlds. In what follows, I will focus more on trademark law, not only because many other contributions to this Symposium thoroughly discuss right of publicity law, but also because I think we should be especially concerned with trademark law’s mutation in the age of Burwell v. Hobby Lobby Stores and Citizens United v. Federal Election Commission into a kind of right of publicity law for corporate personhoods. Before I proceed, I should emphasize one point from the start. I very much doubt that Dogan or Lemley would disagree with the general thrust of my argument, not least because much of it draws upon other work by them.

Brief for Professor Kent Greenfield As Amicus Curiae in Support of Respondents, State of Washington vs. Arlene's Flowers and Ingersoll vs. Arlene's Flowers

This amicus curiae brief addresses a fundamental state-law premise of Appellants’ constitutional claims that has gone largely unexplored in the prior briefing: whether Arlene’s Flowers, a Washington for-profit corporation, may obtain an exemption from generally applicable laws based on the religious beliefs of a shareholder, Mrs. Stutzman. Citing the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Appellants assert that “Arlene’s free-exercise rights are synonymous with Mrs. Stutzman’s.” Those two cases, however, had nothing to do with Washington corporate law and took no stance on the authority of Washington corporations to raise constitutional claims of their shareholders. The assertion that Mrs. Stutzman’s rights are synonymous with the corporation depends on Washington state law and runs counter to the foundational Washington corporate law principle, expressed in Grayson v. Nordic Constr. Co., that “[a] corporation exists as an organization distinct from the personality of its shareholders.” This amicus curiae brief addresses the significance of corporate separateness to Washington’s law of corporations and explains how Appellants’ arguments rest on a conflation of those distinctions. This Court’s consideration of the constitutional claims in this case will be aided by a full understanding of these important, antecedent aspects of Washington law.

Bank of the United States v. Deveaux and the Birth of Constitutional Rights for Corporations

Bank of the United States v. Deveaux and the Birth of Constitutional Rights for Corporations ADAM WINKLER Introduction Recent decisions by the Supreme Court of the United States in Citizens United v. Federal Election Commission, holding that corporations have a First Amendment right to spend money to influence elections, and Burwell v. Hobby Lobby Stores, Inc., permit­ ting corporations to assert religious liberty rights under a federal law, have brought the issue of rights for corporations into the public consciousness. The rise of corporate constitutional rights is usually traced to an 1886 case, Santa Clara County v. Southern Pacific Railroad, which is often cited for establishing that corporations are “persons” under the Constitution. While the story ofthe Southern Pacific’s case is highly entertaining —involving an illustrious lawyer who deceived the Justices and a misleading headnote that claimed the Court had decided issues it had not—Santa Clara County was hardly the first Supreme Court case to address the constitutional rights of corporations. That honor belongs to another case decided almost eighty years earlier, Bankofthe UnitedStates v. Deveaux, and corporate personhood played little role.1 Although still cited from time to time for other issues, Bank of the United States v. Deveaux is one ofthe neglected landmarks of American constitutional law. The explicit question addressed in the case was whether business corporations had constitutional protections—namely, the right to sue in federal court on grounds of diversity under Article III. While there is little evidence the Framers ever intended the Constitution to apply to business entities, Chief Justice John Marshall’s opinion for the Court broadly construed the text to cover corporations. Marshall did not say that corporations were 238 JOURNAL OF SUPREME COURT HISTORY people; in fact, his reasoning rejected the core tenets of corporate personhood. Instead, Marshall based his decision on a very different conception of the corporation—as an association of people—that would prove far more influential than corporate personhood injustifying the expansion ofindividual rights to corporations over the next two centuries. The Bank of the United States The corporation behind the first corpo­ rate rights case was the Bank of the United States, arguably the first great corporation in the new nation. The brainchild of Alexander Hamilton, George Washington’s Secretary of the Treasury, the Bank of the United States was chartered by the first Congress in 1791 and carried the country’s name. Yet it was what Americans today would think of as a private business. It was a for-profit corpora­ tion with publicly traded stock, managed by executives who were accountable to stock­ holders. The federal government had seats on the board and a considerable number of shares, but otherwise the investors were private individuals. At a time when the handful of existing American corporations were local concerns—operating, say, a toll bridge across the Charles River—the Bank was a national enterprise, with headquarters in Philadelphia and branches stretching from Boston to New Orleans.2 The mission of the Bank of the United States was to secure America’s credit and stabilize the nascent nation’s precarious economy. There were already a number of state-created banks but their notes were unreliable. A federal bank, backed by Congress, would have the resources to guarantee its notes and offer a more secure place to hold the federal government’s deposits. Hamilton had been inspired by the success of an earlier bank, the Bank ofNorth America, founded during the Revolutionary War. When Washington’s army was short on rations and pay, with soldiers on the verge of mutiny and American currency nearly worthless, the Bank of North America was established to print more dependable notes and insure liquidity. The plan worked to the benefit of both the nation and investors, who received annual dividends of thirteen-tofourteen percent. The Bank ofNorth America was transformed into a private state bank in 1786, and today, after more than two centuries of mergers and reorganizations, remains a tiny part of Wells Fargo.3 Despite the success of the Bank of the North America, Hamilton faced significant hurdles in setting up his bank. One of them was the text ofthe Constitution. Did Congress have the power to...

Corporate Governance Beyond Economics

In recent years, changes to state and federal law have increased pressure on corporate law to serve as an ordering mechanism for interests and values beyond economics. On the federal front, two U.S. Supreme Court cases have put existing corporate law in a new quasi-constitutional light. In the landmark decisions of Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has pointed to state corporate law as the mechanism for ordering political and religious activity. In addition, Congress, the SEC, and federal courts have been embroiled in battles about the scope and appropriateness of regulating corporate speech and disclosures on topics such as conflict minerals and political expenditures that are driven principally by humanitarian and democratic concerns rather than economic goals. On the state law front, a movement of social entrepreneurs has catalyzed a majority of states to adopt legislation for a new form of business entity — the benefit corporation. The public push for this form of corporate entity harkens back to early American law, permitting businesses to be chartered to pursue a dual mission of profits and a social, religious, or environmental goal. This chapter examines these developments and their implications, and anticipates future challenges on the horizon, including with respect to corporate commercial speech and freedom of association. Significant issues remain to be worked out in coming years in reconciling the increased social, political, and religious activity of business corporations.

The Public's Motivated Response to Supreme Court Decision-Making

ABSTRACTThis article analyzes how the public perceives the Supreme Court's decision-making in Burwell v. Hobby Lobby Stores, Inc. (2014) and National Federation of Independent Business v. Sebelius (2012). Using theories of motivated reasoning and cognitive dissonance, I hypothesize that whether an individual approves or disapproves of the Court's decision will influence how they perceive the Court's decision-making. Specifically, those who approve of the Court's decision are more likely to be motivated to perceive the Court's decision-making in a legalistic fashion. However, those who disapprove of the decision are more likely to be motivated to perceive the Court's decision-making in a non-legalistic fashion. I find support for these hypotheses in analysis of both cases. The results presented in this article suggest that scholars need to consider how the public reacts to individual Court cases when studying how the public perceives the Court's decision-making. Further, these findings help explain the growing literature that finds individuals perceive the Court as less legitimate when the Court rules contrary to their interests.

When Religious Exemptions Cause Third-Party Harms: Is The Establishment Clause Violated?

Those disappointed with the ruling by the Supreme Court of the United States in Burwell v. Hobby Lobby Stores, Inc.1 are seeking ways to otherwise limit the Religious Freedom Restoration Act (RFRA). Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, wrote that when a statute seeks to exempt a religious claimant's beliefs or practices from general legislation there must be no detrimental effect on third parties who do not share those beliefs.2 She was referring to those employees and their families as “third parties” who, because of RFRA, would not have available the full complement of contraceptive devices in their employer-provided health insurance plan. Although it is unclear whether Justice Ginsburg continues to rely on the Establishment Clause as imposing this categorical restraint on the authority of Congress to craft religious exemptions,3 some academicians argue that her thinking necessarily rests on the clause.4 It is of some importance whether these commentators are correct about the third-party harm rule being dependent on the Establishment Clause. Justice Samuel Alito, writing for the court in Hobby Lobby, squarely rejected the argument that third-party harms categorically defeat requests for accommodations under RFRA.5 He did not, however, consider the Establishment Clause. That was because the solicitor general never argued the clause. So these academicians are able to maintain that nothing in Hobby Lobby contradicts their reliance on the clause. They would, of course, like to have Justice Ginsburg on their side. In her recent concurrence in Holt v. Hobbs,6 Justice Ginsburg reiterated her view that substantial third-party harms are a categorical restraint on statutory religious accommodations, but she did not clarify whether her novel rule is derived from the Establishment Clause or is solely a limitation implicit in the underlying statutory claim.7

RFRA Rights Revisited: Substantial Burdens, Judicial Competence, and the Religious Nonprofit Cases

The most recent challenge to the free exercise of religion is here. And while it stems from the same legislation that prompted the action in Burwell v. Hobby Lobby Stores, Inc. — the contraception mandate under the Patient Protection and Affordable Care Act (the “ACA”) — it raises unique and equally important issues: what constitutes a substantial burden on the exercise of religion and who gets to decide (the religious adherents or the courts). In Hobby Lobby, the government contended that for-profit corporations could not exercise religion and, consequently, could not avail themselves of the broad protection afforded free exercise under the Religious Freedom Restoration Act. In the seven religious nonprofit cases pending before the United States Supreme Court, the government acknowledges that RFRA applies to religious nonprofits but now alleges that the ACA does not substantially burden the free exercise of these religious organizations. In particular, the government argues that the accommodation to the contraception mandate (which permits religious nonprofits to avoid directly providing coverage for all FDA-approved contraceptives and sterilization procedures by giving notice to their insurance issuers or third party administrators that the religious organizations object to providing such coverage) does not burden, let alone substantially burden, the religious nonprofits’ exercise of religion.To date, eight circuit courts of appeals have sided with the government, instructing the religious nonprofits that their sincerely held belief — that the accommodation makes them complicit in a grave moral wrong (i.e., the provision of contraceptives and abortifacients) — is incorrect because the ACA, not any actions by the religious nonprofits, is the legal cause of the insurance issuers’ and TPAs’ obligation to provide such coverage. Under the majority’s “Pontius Pilate” defense, the accommodation “washes the hands” of religious nonprofits, cleansing them of any legal or moral responsibility for providing the objectionable coverage. As a result, the religious nonprofits cannot meet their burden under RFRA because the accommodation does not substantially burden their exercise of religion. Only the Eighth Circuit has ruled for the religious nonprofits. The Supreme Court’s resolution of the circuit conflict, therefore, will impact the scope of free exercise protection far beyond the ACA context by deciding whether courts or religious practitioners have the right to determine when government-mandated actions actually contravene sincerely held religious beliefs.This article contends that the circuit court majority is wrong. Contrary to the majority’s claim, Hobby Lobby and Holt v. Hobbs preclude courts from deciding whether the ACA (or any other statute) actually burdens a religious adherent’s sincerely held beliefs. Although, as Chief Justice Marshall famously declared, “it is emphatically the province and duty of the judicial department to declare what the law is,” courts lack the authority and competence to declare what the religious commitments of a faith are and when those commitments are violated. Under the Court’s free exercise precedents, courts can determine only whether the government puts a religious practitioner to the choice of engaging in conduct that violates her beliefs or of disobeying the government’s policy and facing “serious” consequences. Religious and philosophical questions regarding moral complicity are left to religious adherents, not the courts. As the Founders recognized, religious and moral questions transcend the legal, imposing a different — and higher — obligation on religious believers. For religious adherents, only God (through a religious authority determined in accordance with their sincere religious beliefs) can determine whether an action makes them complicit in sin. Consequently, as the Court explained in Hobby Lobby, “question[s]” about moral complicity are ones “that the federal courts have no business addressing.”

Respecting Religion: How Court and Congress Impermissibly Treaded on Sacred Ground to the People's Detriment

This is the first article in a three-part series examining a recent decision of the United States Supreme Court: Burwell v. Hobby Lobby Stores, Inc. Though the Fourteenth Amendment was originally passed to protect the rights of Black Americans, who had just won their freedom, it did not truly begin to protect them until the Civil Rights Era, and even then not enough. By contrast, the Fourteenth Amendment protected corporations almost as soon as it was enacted, and has since fueled the steady expansion of corporate rights. This article shows that Hobby Lobby not only represents an historical anomaly, but a definite departure from the Court's religious accommodation jurisprudence. It also marks a dangerous deviation from the principles embraced by the Framers of the Constitution.

Turning the Water to Blood: How Burwell v. Hobby Lobby Drove the Religious Freedom and Restoration Act Out of Touch with Society

Since the case of Burwell v. Hobby Lobby Stores, Inc. modified the Patient Protection and Affordable Care Act, the heat has been cranked up on religious extremists to exert one’s own belief onto that of another. In allowing closely-held businesses to opt out of Obamacare’s mandate to provide contraceptive coverage to employees, what we see is not only a rebirth of the Religious Freedom and Restoration Act (“RFRA”), but a fallout as a direct consequence. America is faced with individuals seeking to answer the question: “How can I use my religion to deny X?” That variable X can be anything: sexual orientation, gender identity, entry into a business, or certain medical coverage to employees. The RFRA has been deemed unconstitutional as applicable to the states, but is applicable to federal law, further affirmed by Hobby Lobby. Many states have created their own version of the RFRA as a means to compensate for the loss of state applicability. Throughout this article, I will shed light on how the Hobby Lobby decision not only stirred the hornet’s nest, but how it blew a hole in it with a fifty caliber rifle. In addition, I will highlight how this case has prompted individuals to use religion as a means of denying certain privileges to other citizens, and what America must do to resolve this insurrection.

You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested U.S. Supreme Court Decisions

This article focuses on the brilliance -- or lack thereof -- of how each side framed the issues in certain hotly contested recent United States Supreme Court decisions. In other words, the article does not challenge the correctness of the Supreme Court decisions. Rather, the article focuses on the techniques used to control the lens by which an issue is analyzed, in particular, use of emotive appeal. As a practical matter, there often are two ways to legitimately frame an issue. In this circumstance -- when both sides could be correct -- why is it surprising that pathos might tip the scales? Cognitive science suggests that powerful emotional appeals certainly may play a role in judicial decision making, perhaps even at a subconscious level. Aristotle realized this long ago and American legal realists have acknowledged this for at least a century. But even if it can be assumed that emotions never sway a judicial decision, there is a second very practical reason to include pathos in judicial filings. This article demonstrates that the “Hellos” -- the emotional hooks set forth in the introductory paragraphs of briefs -- often are showcased front-and-center in the resulting Supreme Court opinion. This is so even when these hooks have nothing at all to do with the merits of the case. To prove this point, this article examines the “Hellos” in five recent hotly contested five-to-four Supreme Court decisions: Obergefell v. Hodges (same-sex marriage); Adoptive Couple v. Baby Girl (parental rights under the Indian Child Welfare Act); ATT Burwell v. Hobby Lobby Stores, Inc. (religious freedom/abortion rights); and Glossip v. Gross (death penalty/drug protocol). The Obergefell discussion also includes analysis of the impacts of the “Hellos” in United States v. Windsor, 133 S.Ct. 2675 (2013) (DOMA) and Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (Prop. 8). This article then compares the “Hellos” to the Supreme Court decisions. The parallels are stunning.This article ends with ten concrete tips for practitioners on how to craft powerful “Hellos.” The advice applies both at the trial court and appellate level. This part also explores the need to go beyond relying upon stock techniques and to instead dig deeper by taking the pulse of ever-changing social norms regarding what is fair and just. That is where the power of persuasion lies. Now, more than ever, practitioners must strive to win the reader over both in the heart and in the mind. It just might matter.

Thou Shalt Not Electioneer: Religious Nonprofit Political Activity and the Threat “God PACs” Pose to Democracy and Religion

The Supreme Court’s 2010 decision in Citizens United v. FEC invalidated a longstanding restriction on corporate and union campaign spending in federal elections, freeing entities with diverse political goals to spend unlimited amounts supporting candidates for federal office. Houses of worship and other religious nonprofits, however, remain strictly prohibited from engaging in partisan political activity as a condition of tax-exempt status under Internal Revenue Code § 501(c)(3). Absent this “electioneering prohibition,” religious nonprofits would be very attractive vehicles for political activity. These 501(c)(3) organizations can attract donors with the incentive of tax deductions for contributions. Moreover, houses of worship need not file with a government agency to begin operating and deriving tax benefits, and the IRS has shown reluctance to aggressively audit their activities. Two circuits have previously upheld the electioneering prohibition against legal challenges, but recent jurisprudential shifts expose the tax code provision to challenge under the Religious Freedom Restoration Act (RFRA), which directs courts to apply strict scrutiny to facially neutral laws that substantially burden the free exercise of religion. First, Burwell v. Hobby Lobby Stores, Inc. greatly reduced the barriers to successful RFRA claims. Second, by lifting restrictions on political speech for many other types of organizations, Citizens United magnified the burden the electioneering prohibition imposes on religious organizations. The decision also rejected compelling state interests that might have previously shielded the law from invalidation. This Note is the first analysis of the electioneering prohibition’s vulnerability in this new legal climate. Despite these significant developments, this Note ultimately concludes that the electioneering prohibition can survive RFRA challenges because the prospect for widespread use of religious organizations as conduits for political activity undermines the values reflected in Establishment Clause jurisprudence.

Who Speaks the Culture of the Corporation?

Recent cases – Burwell v Hobby Lobby Stores and Citizens United chief among them – evince a new understanding of the nature of the corporation and its place in society. Whether a corporation has rights – such as those of religious exercise – is not, however, just a question of legal interpretation. To answer this question requires a theory of group or cultural identity, that is, a theory of how a group may have “culture” separate and apart from those of the individuals that comprise it. And such a theory must address how to understand the meaning of culture when the beliefs of people within the group diverge. However, the Supreme Court’s analysis has fallen short by glossing over this step in the analysis. In Hobby Lobby, the Supreme Court indicated that the question of the religious identity of the corporation might easily be resolved by the semi-democracy of state corporate law: those shareholders and managers controlling the corporation, that is, decide the identity of the corporation. As Justice Ginsburg noted in her dissent, however, in the case of religious belief, things can get fairly gnarly. This Article critiques the Supreme Court’s oversimplified view of how group identity is formed using anthropology as its guide. This anthropological approach argues that the question of corporate “culture” is far more complex than the Court’s jurisprudence acknowledges. This approach requires rethinking the corporate rights doctrine and its assumptions about shareholder democracy. One or the other must fall – either the notion that corporations have cultural rights such as those of a “religion,” or the processes of majority shareholder voting that do not track an ingrained cultural identity.

States' Rights Against Corporate Rights

Most of the many critics who denounce Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., ground their complaint in consequentialist terms, at least in part. They see these decisions as entrenching corporate power, by constitutional or quasi-constitutional means, against what ought to be a supervening public will. This Article argues for a different view. Far from entrenching corporate power, the rights cases effectively delegate choices about corporate activities to a politically sensitive, if surprising, instrument:ordinary state legislation. In particular, this Article advances two claims about the nature of states’ rights against corporate rights: first, under existing law, the states can subvert the federal rights of their own corporations; second, and more speculatively, the states can also frustrate the federal rights of foreign corporations that do local business. The analysis suggests that reformers would do well to look to the state capitols rather than the halls of Washington. It also yields implications for the theory of interstate corporate regulation more generally.

Neuroscience, Sincerity, and the Law

This article focuses on the United States to consider how recent developments in neuroscience, specifically in the ability of researchers to measure directly certain types of brain activity through technologies such as functional Magnetic Resonance Imaging (fMRI), might be used so as to render states of mind, such as sincerity, measurable as “objective facts” on a par with other observable phenomena for the purposes of resolving specific legal cases. The primary focus will be on sincerity itself, particularly in relation to religious beliefs that are claimed as a basis for exemption for compliance with an existing statutory regime of general applicability. Part One examines how the issue of sincerity has manifested in disputes concerning conscientious objections to participating in the military draft. Part Two reviews the science of fMRI and consider issues raised by the use of fMRI scans as evidence in legal cases. Part Three addresses these issues specifically as they might bear on considerations raised in the conscientious objector cases discussed in Part One. It considers the challenges of applying fMRI technology to these sorts of cases. Part Four considers the recent case of Burwell v. Hobby Lobby Stores, Inc ., where the U.S. Supreme Court upheld a closed corporation’s claim under the Religious Freedom Restoration Act to be exempt from complying with a provision of the Affordable Care Act concerning the provision of medical insurance to employees that covered certain forms of contraception because it substantially burdened the religious beliefs of its owners – effectively attributing their beliefs to the corporation. The Court explicitly did not consider the sincerity of claims in this case, but this paper will explore how the adoption of fMRI technology could potentially change this approach.

Burwell v. Hobby Lobby Stores, Inc

STUDY OBJECTIVE: To survey obstetrics and gynecology residents' knowledge of and interest in the Supreme Court of the United States' decision regarding Burwell v. Hobby Lobby Stores, Inc., along with their general interest in health policy. METHODS: Identical, anonymous surveys were administered to 15 obstetrics and gynecology residents following the Burwell v. Hobby Lobby Stores, Inc. decision. RESULTS: A total of 15 obstetrics and gynecology residents were surveyed. Although 100% heard of Burwell v. Hobby Lobby Stores, Inc., less than half felt comfortable discussing the case in lay terms. Among those surveyed, 73% had actively sought to learn more about the case and answered correctly regarding the forum and basic premise of the case. All residents surveyed believe that physicians should be involved in politics and that health policy should be a part of resident education. All residents also expressed some desire for personal future involvement in healthy policy. Approximately half currently follow policy related media, and 93% were interested in a resident-generated women's reproductive health policy email. CONCLUSION: Residents demonstrated strong awareness regarding Burwell v. Hobby Lobby Stores, Inc., however had gaps in knowledge and were less confident in their ability to discuss the case, even in lay terms. They showed strong agreement that physicians have a role in health policy and that residency training should include health policy education. Residency is an opportune time to foster policy interests in trainees and thereby bolster the presence of obstetrics and gynecology physicians in women's health policy decisions.