Why Hobby Lobby Should Not Be Disqualifying for Judge Gorsuch (i.e. it’s not as bad as it seems)

Last night, after Judge Neil Gorsuch was nominated to be the next Associate Justice of the Supreme Court, many cited Burwell v. Hobby Lobby as a reason to oppose his nomination.  Judge Gorsuch signed onto a Tenth Circuit opinion, affirmed by the Supreme Court, holding that closely held for-profit corporations need not follow the Affordable Care Act’s mandate to provide health insurance coverage for contraception that the owners’ believe facilitate abortions.

Because I have taught Law and Religion, and because I am now teaching Insurance, I want to comment on the case that joins both subjects.  I understand the opposition to the result in Hobby Lobby.  However, as Judge Gorsuch alluded to last night, results should not be the primary way in which we judge whether an opinion is correct.  Below is a quick and dirty primer on why Judge Gorsuch’s reasoning is justifiable.


First, Hobby Lobby was not interpreting the Free Exercise Clause of the First Amendment, which would not have allowed Hobby Lobby, a corporation with Christian owners, to exempt itself from the ACA.  The Supreme Court has held (in a Justice Scalia opinion) that individuals must follow generally applicable, neutral laws even if those laws violate their religion.  Instead, the Tenth Circuit in Hobby Lobby was interpreting a law that provides much greater latitude for those claiming religious exemptions, the Religious Freedom Restoration Act.  RFRA provides that federal laws that substantially burden religion must be narrowly tailored to serve a compelling governmental interest.   RFRA, a bill with bipartisan support, was intended to protect those of minority religions, but its wording applies to all burdens on religion.  Judges cannot change this law, and Judge Gorsuch was bound to apply its broad protections invalidating laws that too greatly burden religion.

Second, the crux of the issue in Hobby Lobby was whether RFRA applies to for-profit as well as non-profit corporations.  Although there are reasonable arguments on both sides, the majority opinion’s view that the word “person” in RFRA should include for-profit corporations was based on a straightforward application of the Dictionary Act.  According to the Dictionary Act, the word “person” in federal statutes should include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1.  The government contended that only non-profit corporations should be covered by RFRA, but nothing in the text of RFRA indicated this reading of the statute.

The dissenting opinion at the Tenth Circuit noted that the legislative history of RFRA and Free Exercise jurisprudence clarify that for-profit corporations are not covered by RFRA.  This case is therefore a close one, and may ultimately depend on a number of factors, including one’s view of adhering to text versus incorporating legislative history in interpreting statutes, and, perhaps Judge Gorsuch’s views about religious liberty.  Ultimately, as the majority notes, Congress does distinguish between for-profit and non-profit corporations in other statutes, and could have done so in RFRA.

Finally, Judge Gorsuch did not write Hobby Lobby.  He joined the majority opinion and wrote separately only to express views about individual Article III standing- whether the owners of Hobby Lobby have standing to sue as individuals.  Indeed, he recognized that “[n]o doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive,” but claimed that asking individuals to violate their religious faith provides a concrete injury upon which corporation owners can sue.  This may be incorrect standing analysis under RFRA, but the issue is contestable.

I do have some concern about the majority’s view that requiring employers to provide health insurance coverage for contraception actually burdens anyone’s religion.  However, the majority, on a preliminary injunction record, presumed this burden mostly because the government did not contest the financial burden, and the district court’s record was sparse.  Ultimately, the majority said that a choice of whether to sacrifice one’s religious beliefs or pay hundreds of millions of dollars in taxes was a substantial burden on religion.

I am sympathetic to the dissent’s view that when one becomes the owner of a corporation, providing generalized health insurance, which also covers contraception, isn’t a direct compromise of one’s religious beliefs.  However, I can also appreciate the majority’s position.  Ultimately, a close case like this should not be the undoing of a respected, impressive, thoughtful judge like Gorsuch.

One thought on “Why Hobby Lobby Should Not Be Disqualifying for Judge Gorsuch (i.e. it’s not as bad as it seems)”

  1. Doesn’t freedom of speech, assembly, and petition apply to both for-profit and not-for-profit corporations, so why wouldn’t freedom of religion?
    And didn’t the freedom of religion argument fail in Runyon v. McCrary (June 25, 1976), and Bob Jones University v. United States (May 24, 1983), and Christian Legal Society v. Martinez (June 28, 2010)?
    So the question is–is it really part of the religion (like the sacrament) or was it added to the religion later (like discrimination)?


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