BURWELL v HOBBY LOBBY STORES INC FINAL NAIL IN THE COFFIN OF THE ACA

Shields, Brandon 3/1/2016
For Educational Use Only
BURWELL v. HOBBY LOBBY STORES, INC.: FINAL NAIL IN..., 17 Duq. Bus. L.J. 125
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1
17 Duq. Bus. L.J. 125
Duquesne Business Law Journal
2015
Article, Comment, and Case Note
BURWELL v. HOBBY LOBBY STORES, INC.: FINAL NAIL IN THE COFFIN OF THE ACA?
Brandon M. Shields a1
Copyright © 2014-2015 by Duquesne University; Brandon M. Shields
PATIENT PROECTECTION - AFFORDABLE CARE ACT - Since Congress passed the ACA in 2010, the Act
has been surrounded by significant controversy and seen tremendous effort to have it repealed. The most common
attack strategy against the Act is to challenge its constitutionality regarding individuals, businesses, and religious
institutions. This article examines those challenges and contemplates whether the Act can truly remain intact in
the wake of its most recent challenge in Burwell v. Hobby Lobby.
I. INTRODUCTION 126
II. HISTORY 128
A. Smith 128
B. RFRA 130
1. Substantial Burden 130
2. Compelling Governmental Interest 131
3. Least Restrictive Means 132
C. City of Boerne 132
D. RLUIPA 133
E. ACA 134
1. Background 134
2. Hobby Lobby 136
III. REPORTING 137
A. Background 137
1. Conestoga 138
2. Hobby Lobby and Mardel 139
B. Burwell v. Hobby Lobby 140
1. Majority Opinion 140
2. Dissent 142
IV. ANALYSIS 143
A. Applicability of RFRA to the Corporations 144
B. Substantial Burden Analysis 146
C. Two-Step RFRA Analysis 147
1. Compelling Governmental Interest Analysis 147
2. Least Restrictive Means Analysis 149
D. Dissent 150
V. CONCLUSION 151
*126 I. INTRODUCTION

The United States Supreme Court's historic decision in Burwell v. Hobby Lobby dealt a devastating blow to
President Barak Obama's signature accomplishment, the passage of the Patient Protection and Affordable Care
Act (ACA). The ACA was hotly debated and polarizing from the moment it was conceived, and continues to be a
major point of contention among many Americans. Support of, or opposition to, the ACA is unquestionably split
along party lines - with democrats generally supporting the law and republicans overwhelmingly opposed to it.
The ACA is arguably the most divisive piece of legislation in recent *127 history. Few, if any, bills introduced
during the 21st century have been met with such opposition.
To suggest that the ACA has gotten off to a rocky start is an understatement. The legislation was plagued by
a contentious vote in Congress, widespread public opposition, and a debacle in implementation. In addition,
numerous court decisions have served to eviscerate major components of the law, including the decision that is the
subject of this article. Even many Americans who support healthcare reform agree that the ACA was ill conceived,
poorly implemented and, in many ways, unconstitutional.
Despite overwhelming public opposition, Congress passed the ACA in March 2010, and President Obama
subsequently signed the bill into law. Since that time, numerous challenges have questioned the constitutionality
or legality of key provisions of the ACA. Many of these challenges have involved the various mandates imposed
by the ACA. For example, the so-called “individual mandate,” which requires all Americans to have health care
coverage or face a penalty, was almost immediately contested as being unconstitutional.
Most of the challenges to the ACA thus far have shared a common theme. These cases have typically involved
situations in which individuals, businesses, or religious organizations have contested key components of the law
on constitutional grounds. One such challenge was a federal lawsuit brought by the owners of three closely held
corporations: Hobby Lobby Stores, Inc., Mardel, and Conestoga Wood Specialties. The owners argued that the
ACA-imposed contraceptive mandate violated constitutional and statutory protections of their religious freedom.
The cases eventually made their way to the United States Supreme Court where they were consolidated as Burwell
v. Hobby Lobby (Hobby Lobby).
This article will examine the Supreme Court's decision in Hobby Lobby, including an in-depth analysis of the
events leading up to the Court's decision, as well as statutory enactments and court decisions that directly impacted
the outcome of the case. Not surprisingly, many Americans are misinformed as to the issues at play in Hobby
Lobby. The primary issue had very little to do with the Free Exercise clause of the First Amendment. Rather, the
decision turned almost entirely on the Court's interpretation of the Religious Freedom Restoration Act (RFRA),
which Congress enacted in 1993 in order to provide greater protection of religious freedom than that afforded
by the First Amendment.
*128 By laying the proper foundation, this article will provide the reader with an accurate snapshot of the issues
at play in Hobby Lobby, including the ACA, RFRA, and how these laws affect American businesses. In addition,
this article will endeavor to address issues that were either glossed over or completely ignored by the Supreme
Court - issues that could become tremendously relevant as the push by to dismantle the ACA grows to a fever
pitch. For example, the Court failed to address the extent to which corporations may claim protections under
RFRA and, in doing so, left the door open for similar claims by large, publicly traded corporations. The Court also
expressly contradicted previous Supreme Court precedent, effectively blurring the line between constitutionally
protected rights and outright entitlements.
The primary purpose of this article is to dispel the misconceptions that exist concerning the actual issues at play
in the Hobby Lobby case. While the text of the Supreme Court's opinion appears to be clear-cut at first blush,

there are many nuances that must be addressed in order to fully understand the Court's reasoning in reaching
its decision. It is by understanding these intricacies and subtle contradictions that the reader will be in the best
position to contemplate the future implications of the Hobby Lobby decision.
II. HISTORY
A. Smith
The genesis of RFRA can be traced to Employment Div., Dept. of Human Resources of Ore. v. Smith. 1
In Smith,
two members of the Native American Church were fired by a private drug rehabilitation organization because
they ingested peyote, a hallucinogenic drug, for sacramental purposes at a Church ceremony. 2
The terminated
employees subsequently filed applications for unemployment, which were denied under an Oregon state law
disqualifying employees discharged for work-related misconduct from receiving unemployment compensation
benefits. 3
Holding that the denials violated the respondents' First Amendment free exercise rights, the Oregon State Court
of Appeals reversed. 4
The *129 Oregon Supreme Court affirmed, but the United States Supreme Court vacated
the judgment and remanded for a determination of whether sacramental peyote use was proscribed by the State's
controlled substance law, which made it a felony to knowingly or intentionally possess the drug. 5
Pending that
determination, the Court refused to decide whether such use was protected by the Constitution. 6
On remand, the
Oregon Supreme Court held that sacramental peyote use violated the state-law prohibition, but concluded that that
prohibition was invalid under the Free Exercise Clause. 7
The United States Supreme Court again granted certiorari and, in a landmark decision, reversed the Oregon
Supreme Court's decision, holding that the Free Exercise Clause permits the State to prohibit sacramental peyote
use and thus deny unemployment benefits to persons discharged for such use. 8
In reaching its decision, the United
States Supreme Court refused to apply the balancing test for analyzing free-exercise claims that was established
in Sherbert v. Verner. 9
The Court reasoned that the balancing test, which required a “compelling governmental
interest” justification for governmental actions that substantially burdened a religious practice, was inapplicable
to an across-the-board criminal prohibition on a particular form of conduct. 10
Interestingly, the Court observed that use of the Sherbert test whenever a person objected on religious grounds
to the enforcement of a generally applicable law “would open the prospect of constitutionality required religious
exemptions from civic obligations of almost any conceivable kind.” 11
The Supreme Court consequently held
that, under the First Amendment, neutral, generally applicable laws may be applied to religious practices even
when not supported by a compelling governmental interest. 12
*130 B. RFRA
Congress responded to Smith by enacting the RFRA, 13
which prohibits governmental actions that substantially
burden a person's exercise of religion, even if the burden results from a rule of general applicability unless the
substantial burden is: (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of
furthering that compelling governmental interest. 14
As amended by the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA), 15
infra, RFRA applies to “any exercise of religion, whether or not compelled
by, or central to, a system of religious belief.” 16
As applied to a federal agency, RFRA is based on enumerated power that supports the particular agency's work,
but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of
the Fourteenth Amendment to enforce the First Amendment. 17
Congress's reliance on its Section 5 powers to
justify RFRA would prove to be the fatal flaw that would ultimately lead to its demise just five short years after
it was enacted. 18
1. Substantial Burden
The first step that a court must take when conducting a RFRA analysis is to determine whether the party asserting
a RFRA claim has standing to do so. 19
Once the court determines that RFRA applies to a particular plaintiff, the
next step is the determination of whether the challenged regulation places a substantial burden upon the person's
exercise of religion. 20
*131 A “substantial burden” on the exercise of religion, within the meaning of the RFRA, arises when the
government puts substantial pressure on an person to modify his behavior and to violate his beliefs, or forces an
individual to choose between following the tenants of his religion and forfeiting benefits or abandoning one of the
tenants in order to retain the benefit. 21
The federal courts have made clear that this substantial pressure can take
the form of a financial burden. 22
In the context of RFRA, a challenged law substantially burdens the free exercise
of religion if it compels acts undeniably at odds with the fundamental precepts of an adherent's religious beliefs. 23
2. Compelling Governmental Interest
Under RFRA, the government cannot compel individuals to act in violation of their religious beliefs, absent a
compelling interest and narrow tailoring of the regulation. 24
If a regulation provides an exception from the law
for a particular group, the government will have a higher burden in showing that the law, as applied, furthers a
purported compelling governmental interest. 25
In RFRA cases, when determining whether a substantial burden
on the exercise of religion is in furtherance of a compelling governmental interest, the court must look beyond
broadly formulated interests and scrutinize the asserted harm of granting specific exemptions to particular religious
claimants. 26
To satisfy its burden under RFRA of demonstrating that application of a substantial burden on a person's exercise
of religion is in furtherance of a compelling governmental interest, the government must specifically identify
an actual problem in need of solving and show that substantially burdening plaintiffs' free exercise of religion
is actually *132 necessary to the solution. 27
It is not sufficient for the government to assert generalized
justifications for a contested regulation. 28
3. Least Restrictive Means

A statute or regulation is the “least restrictive means” of furthering a compelling governmental interest under
RFRA if no alternative forms of regulation would accomplish the compelling governmental interest without
infringing upon a person's exercise of religion. 29
The mere existence of a government-sanctioned exception to a
regulation that is purported to be the least restrictive means under RFRA can demonstrate that other, less restrictive
alternatives could exist. 30
In order for the government to show that a regulation is, in fact, the least restrictive
means under RFRA, it must provide actual evidence, not mere conjecture, that the law is the least restrictive means
of achieving the compelling interest. As this article will explain in greater detail, this prong of the RFRA test is
exceptionally demanding. 31
C. City of Boerne
In City of Boerne, the Supreme Court found that Congress had overstepped its Section 5 authority in enacting
RFRA. 32
The Court held that the stringent test required by RFRA “far exceed[ed] any pattern or practice of
unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” 33
*133 In Boerne, local zoning authorities denied the Catholic Archbishop a building permit to enlarge his church
under an ordinance governing historic preservation. 34
The Archbishop brought suit challenging the ordinance
under RFRA. 35
The United States District Court for the Western District of Texas entered judgment for city,
determining that Congress had exceeded scope of its enforcement power under § 5 of Fourteenth Amendment in
enacting RFRA. 36
The Fifth Circuit Court of Appeals reversed, finding RFRA to be constitutional. 37
The City
appealed and the United States Supreme Court granted certiorari. 38
The Supreme Court agreed with the district
court and held that Congress had exceeded its § 5 enforcement powers in enacting RFRA. 39
D. RLUIPA
In response to the Supreme Court's decision in City of Boerne, Congress passed the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA). 40
RLUIPA was enacted under Congress's Commerce and
Spending powers and imposes the same general test as RFRA. However, RLUIPA is applicable to a much more
limited category of governmental actions. 41
What is most relevant for purposes of Hobby Lobby is that RLUIPA
amended RFRA's definition of the “exercise of religion.” 42
Before RLUIPA, RFRA's definition made reference
to the First Amendment. 43
In an obvious effort to effect a complete separation from First Amendment case
law, Congress deleted the reference to the First Amendment in RLUIPA and defined the “exercise of religion”
to include “any exercise of religion, whether or not compelled *134 by, or central to, a system of religious
belief.” 44
Congress mandated that this concept “be construed in favor of a broad protection of religious exercise,
to the maximum extent permitted by the terms of [RLUIPA] and the Constitution.” 45
The similarity between the
language of RFRA and that of RLUIPA is strikingly similar, making it clear that Congress intended to reestablish
the RFRA standards when it enacted RLUIPA. 46
E. ACA

1. Background
Congress enacted the Patient Protection and Affordable Care Act (ACA) 47
in March 2010 amid a firestorm of
controversy. The purported purpose of the legislation was to increase the number of Americans covered by health
insurance and to decrease the cost of health care. 48
However, many Americans believed that key provisions of the
ACA were beyond the scope of Congress's power in that they placed affirmative duties upon millions of American
citizens by forcing them comply with various mandates imposed under the new law. 49
The constitutional and statutory challenges began almost simultaneously with the enactment of the ACA. 50
The
first constitutional challenge to the ACA was brought in the United States District Court for *135 the Northern
District of Florida immediately after the ACA was enacted. 51
In Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB),
twenty-six states, as well as private individuals and an organization of independent businesses, brought an action
against HHS and various related federal agencies challenging the constitutionality of the ACA. 52
The plaintiffs argued, inter alia, that the so-called individual mandate 53
exceeded the scope of Congress's
Commerce Clause powers. 54
The district court agreed, holding that ACA's individual mandate exceeded
congressional authority. 55
Finding that the individual mandate was not severable from the remainder of the ACA,
district court declared the entire Act invalid. 56
The government appealed and the Eleventh Circuit Court of
Appeals affirmed the district court's determination that the individual mandate was unconstitutional. 57
However,
the Eleventh Circuit disagreed with district court's holding that the individual mandate was not severable from
the remainder of the ACA. 58
The United States Supreme Court subsequently granted certiorari to resolve the constitutional challenges to the
individual mandate, as well as a provision of the ACA known as the Medicaid expansion. 59
The Supreme
Court held that the individual mandate exceeded Congress's Commerce Clause powers and was therefore
unconstitutional. 60
However, in a surprising 5-4 decision, the Court found that, because the penalties for non-
compliance with the mandate were to be paid to the Internal *136 Revenue Service and collected in the same
manner as tax penalties, the penalty was actually a “tax,” and was therefore within the scope of Congress's taxing
power. 61
After the Supreme Court announced its decision in NFIB, it was evident that any chance of the ACA being
invalidated in its entirety had vanished. Instead, individuals, business, and organizations began to implement
different means by which to achieve similar ends. Rather than engaging in a futile war to have the law struck down
as unconstitutional, opponents of the ACA have undertaken a series of small battles by attacking key provisions of
the law with a barrage of constitutional and statutory challenges. 62
Because the success of the ACA is dependent
upon all of the provisions working in tandem, this selective sniping of important provisions of the ACA may prove
to be an effective means by which to render the ACA impotent, irrelevant, and unworkable.
2. Hobby Lobby
At issue in Hobby Lobby was an ACA-imposed mandate, which requires specified employers' group health plans
to furnish preventive care and screenings for women without any cost sharing requirements. 63
Congress did not

specify what types of preventive care must be covered. 64
Instead, Congress authorized the Health Resources
and Services Administration, a component of HHS, to decide. 65
Nonexempt employers are generally required to
provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the
four contraceptives to which Hobby Lobby, Mardel, and Conestoga objected. 66
These particular contraceptive
methods - also known as abortifacients - may have the effect of preventing an already fertilized egg from
developing any further by inhibiting its attachment to the uterus. 67
*137 Religious employers, such as churches and certain colleges and universities operated by religious
organizations, are exempt from the contraceptive mandate. 68
In addition, HHS has also effectively exempted
religious nonprofit organizations with religious objections to providing coverage for contraceptive services. 69
Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer's plan
and provide plan participants with separate payments for contraceptive services without imposing any cost-sharing
requirements on the employer, its insurance plan, or its employee beneficiaries. 70
However, the ACA does not
allow for such exemptions in the case of for-profit corporate employers. 71
III. REPORTING
A. Background
In Hobby Lobby, the owners of three closely held for-profit corporations objected to the ACA-imposed
contraceptive mandate because of their sincerely held Christian beliefs that life begins at conception. 72
The
owners argued that it would have violated their religion to facilitate access to contraceptive drugs or devices that
operate after the point of conception. 73
Under the ACA contraceptive mandate, qualifying employers are required
to provide group health plans that provide access to four such contraceptives. 74
In separate actions, 75
the owners
of Hobby Lobby, Mardel, and Conestoga sued HHS and other federal officials *138 and agencies (collectively
HHS) under RFRA and the Free Exercise Clause. 76
The owners sought to enjoin application of the contraceptive
mandate insofar as it required them to provide health coverage for the four objectionable contraceptives. 77
1. Conestoga
In Conestoga, the district court denied Conestoga Wood Specialties a preliminary injunction. 78
The district court
analyzed Conestoga's request for injunctive relief under both the Free Exercise Clause of the First Amendment
and RFRA. 79
With respect to Conestoga's Free Exercise claim, the district court held that the right of free
exercise under the First Amendment is unavailable to secular, for-profit corporations. 80
The court also dismissed
Conestoga's contention that it was entitled to First Amendment protection because Conestoga was merely the alter
ego of the company's owners. 81
The district court reasoned that an employer could not act as the owners' alter
ego to assert the owners' rights to free exercise of religion in challenging regulations. 82
Accordingly, the district
court held that the contraceptive mandate did not offend the Free Exercise Clause. 83
After examining the Hahn's claim under the Free Exercise Clause, the district court analyzed their request for
injunctive relief under RFRA. 84
As explained in detail, supra, 85
a RFRA analysis requires several steps. First,

the determination must be made as to whether the person seeking RFRA protection has standing to assert a
claim. 86
After this determination has been made, the court must decide whether the regulation in question places
a substantial burden on a person's exercise of *139 religion. 87
If a court finds that RFRA applies to the person
seeking protection and the regulation in question places a substantial burden on that person's exercise of religion,
the court must determine whether the regulation serves a compelling governmental interest; and, if so, whether
the regulation achieves that purpose through the least restrictive means possible. 88
At the conclusion of its RFRA analysis, the District Court for the Eastern District of Pennsylvania held that an
employer, such as Conestoga, could not “exercise religion” within the meaning of RFRA. 89
The court went on
to say that the contraceptive mandate did not substantially burden the Hahn's exercise of religion because the
regulation applied to their company, and not the Hahn's personally. 90
The district court reasoned that any burden
that the contraceptive mandate placed upon the Hahn's was too attenuated to be considered substantial. 91
Affirming the district court's ruling that Conestoga was not entitled to injunctive relief under the Free Exercise
Clause of the First Amendment, nor under RFRA, the Third Circuit held that a for-profit corporation could
not “engage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no
requirements on the Hahns in their personal capacity. 92
2. Hobby Lobby and Mardel
In Hobby Lobby, the Greens, their children, and their companies--Hobby Lobby Stores and Mardel--were also
denied a preliminary injunction by the district court. 93
The District Court for the Western District of Oklahoma
held that corporations did not have protected rights under the Free Exercise Clause. 94
With respect to Hobby
Lobby's RFRA claim, the district court found that corporations were not “persons” within the meaning of
RFRA. 95
*140 However, unlike the Third Circuit in Conestoga, the Tenth Circuit Court of Appeals reversed the lower
court's decision. 96
The Tenth Circuit held that the Greens' businesses were “persons” under RFRA, and that the
corporations had established a likelihood of success on their RFRA claim because the contraceptive mandate
substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing
the mandate against them. 97
In the alternative, the Tenth Circuit held that HHS had not proved that the mandate
was the least restrictive means of furthering a compelling governmental interest. 98
The United States Supreme Court ultimately granted certiorari and the cases were consolidated. Arguments took
place on March 25, 2014, and the case was decided on June 30, 2014.
B. Burwell v. Hobby Lobby
1. Majority Opinion
After carefully considering the arguments of both sides, the Court analyzed the claims of Hobby Lobby, Mardel,
and Conestoga under RFRA, rather than the First Amendment, or a hybrid constitutional-statutory rubric. 99

Justice Alito delivered the opinion of the Court on June 30, 2014, with Chief Justice Roberts, Justice Scalia, Justice
Kennedy, and Justice Thomas joining in the opinion. 100
Justice Kennedy filed a concurring opinion. 101
Notwithstanding the arguments advanced by HHS, the majority held that RFRA applies to regulations that govern
the activities of closely held for-profit corporations. 102
The majority also found unpersuasive the government's
argument that the owners of Hobby Lobby, Mardel, and Conestoga did not have standing to challenge the
contraceptive mandate because the regulation applied only to the companies, and did not affect the owners
personally. 103
*141 The majority - having found that RFRA applied to Hobby Lobby, Mardel, and Conestoga - held that the
contraceptive mandate substantially burdened the corporations' exercise of religion. 104
The majority reasoned
that the mandate required the companies to engage in conduct that seriously violated their sincere religious beliefs
that life begins at conception. 105
The majority pointed out that refusal to comply with the mandate would subject
Hobby Lobby, Mardel, and Conestoga to severe economic consequences. 106
Accordingly, the majority found
that the contraceptive mandate imposed a substantial burden on the companies' exercise of religion. 107
After determining that RFRA applied to Hobby Lobby, Mardel, and Conestoga, and that the contraceptive mandate
imposed a substantial burden on the companies' exercise of religion, the Court began the two-step analysis required
by RFRA. 108
At the conclusion of this analysis, the majority found that, while the contraceptive mandate arguably
serves a compelling governmental interest, it is not the least restrictive means by which to achieve this compelling
interest. 109
Having determined that the ACA-imposed contraceptive mandate, as applied to Hobby Lobby, Mardel, and
Consetoga, violated RFRA, the majority affirmed the Tenth Circuit's decision and reversed and remanded the
decision of the Third Circuit. 110
Despite the dissent's overly-dramatic contention that the majority was opening
the floodgates to allow any commercial enterprise to opt out of laws they judge incompatible with their sincerely
held religious beliefs, 111
the majority explicitly limited its decision to closely held corporations such as Hobby
Lobby, Mardel, and Conestoga. 112
*142 2. Dissent
Justice Ginsburg filed a dissenting opinion, which Justice Sotomayor joined, and Justices Breyer and Kagan joined
except for one part. 113
Justices Breyer and Kagan also filed a dissenting opinion. 114
The dissent advanced many
of the same arguments made by HHS. 115
Essentially, the dissent disagreed with every finding of the majority,
save the majority's holding that the contraceptive mandate serves a compelling governmental interest. 116
The most strongly asserted argument of the dissent was its contention that Hobby Lobby, Mardel, and Conestoga
are not “persons” within the meaning of RFRA, and therefore did not have standing to bring a RFRA claim. 117
Citing the absence of any case law to support the idea that free exercise rights pertain to for-profit corporations,
the dissent argued that free exercise of religion is a characteristic of natural persons, not artificial legal entities. 118
This is the classic “we've never done it before, so we shouldn't do it now” argument. It is not difficult to imagine

where American society would be today if the Supreme Court refused to proclaim that a practice is wrong simply
because it had never made such a proclamation before.
In addition to the dissent's contention that for profit corporations should not be able to bring claims under RFRA,
the dissent argued that, even if RFRA did apply to the companies, the contraceptive mandate did not impose
a substantial burden on Hobby Lobby, Mardel, and Conestoga. 119
Indeed, the dissent accused the majority of
failing to even inquire whether the burden imposed by the contraceptive mandate was substantial. However, as
discussed infra, this accusation is clearly baseless, as the majority conducted a thoughtful analysis of the financial
burdens that would befall Hobby Lobby, Mardel, and Conestoga if they chose not to comply with the mandate. 120
The next argument advanced by the dissent was that the contraceptive mandate serves a compelling governmental
interest. 121
While the majority agreed with this contention, it did not go as far as the dissent *143 in
asserting that the compelling governmental interest served by the contraceptive mandate is the prevention of
unwanted pregnancy. 122
However, the dissent did not adequately address the fact that there are still many viable
contraceptive options available to the employees of Hobby Lobby, Mardel, and Conestoga, as the companies only
objected to four of the twenty contraceptive methods enumerated in the contraceptive mandate. 123
Finally, the dissent asserted that, even if RFRA did apply to the companies, and even if the contraceptive mandate
did create a substantial burden on the companies' exercise of religion, the mandate does not violate RFRA because
it serves a compelling governmental interest through the least restrictive means. 124
The dissent's key argument in
support of this assertion was that the majority's proposal - that the government could assume the cost of providing
the objected-to contraceptive methods - impermissibly shifted the burden from the objecting employer to American
taxpayers. 125
IV. ANALYSIS
The Supreme Court's decision in Hobby Lobby dealt yet another blow to the already embattled Patient Protection
and Affordable Care Act. In its decision, the Court systematically dismantled nearly every argument made by HHS
in support of its position that RFRA did not apply to Hobby Lobby, Conestoga, and Mardel (“Corporations”). 126
However, like many controversial decisions, the Court failed to address certain issues, leaving important questions
unanswered.
In Hobby Lobby, the Supreme Court chose to address the claims of the Corporations under a strictly statutory
rubric. While it is well settled that a case may be decided on either statutory or constitutional grounds, 127
it
is equally well settled that, in the process of constitutional adjudication, the Supreme Court ought not to pass
on questions of constitutionality, unless such adjudication is unavoidable. 128
Despite this precedent, the Hobby
Lobby Court analyzed the Corporations' claims *144 under RFRA alone, rather than conducting both the First
Amendment and RFRA analyses as the lower courts had done. 129
This decision by the Court proved to be
fortuitous for the Corporations, as RFRA provides greater protection for religious exercise than that embodied
in the Free Exercise Clause. 130
A. Applicability of RFRA to the Corporations

The first issue the Supreme Court addressed in Hobby Lobby was whether RFRA applied to regulations that
govern the activities of for-profit corporations - in this case, the contraceptive mandate. 131
HHS argued that,
because the Corporations sought to make a profit for their owners, the owners could not raise a RFRA claim
because the contraceptive mandate applies to the corporation and not the individual owners. 132
In determining
the applicability of RFRA to closely held corporations, the Court “reject[ed] HHS's argument that the owners
of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations
rather than sole proprietorships or general partnerships.” 133
The Court went on to say that, “the plain terms of
RFRA make it perfectly clear that Congress did not discriminate ... against men and women who wish to run their
businesses as for-profit corporations in the manner required by their religious beliefs.” 134
In its applicability analysis, the Court recognized that RFRA does not define the term “person.” 135
Consequently,
the Court looked to the Dictionary Act 136
to determine whether the word “person” includes for-profit
corporations. 137
Under the Dictionary Act, the word “person” includes *145 corporations, companies,
associations, firms, partnerships, societies, and joint stock companies, as well as individuals. 138
The Court
subsequently concluded that, since there is nothing about the context of RFRA which indicates a congressional
intent to depart from the Dictionary Act definition of “person,” the Act “provides a quick, clear, and affirmative
answer to the question whether the companies involved in these cases may be heard.” 139
The Supreme Court reached a similar conclusion in Citizens United when it determined that corporations are
persons within the meaning of the First Amendment. 140
The Court has rejected the argument that political speech
of corporations or other associations should be treated differently under the First Amendment simply because
such associations are not “natural persons.” 141
While it is true that Citizens United involved a First Amendment
free speech issue, rather than a RFRA claim, it must be remembered that Congress enacted RFRA with the
goal of providing broader protection for religious liberty than what the Supreme Court had previously held was
constitutionally required under the First Amendment. 142
While the Supreme Court found that RFRA applied to the Corporations, it failed to definitively answer the
question of whether RFRA applies exclusively to closely held corporations, or if large public corporations may also
avail themselves of RFRA protections. One of HHS's primary arguments against allowing for-profit corporations
to raise RFRA claims was that it would be too difficult to ascertain the sincere beliefs of a corporation. 143
Notwithstanding this argument, the Supreme Court ultimately determined that the three companies involved in
Hobby Lobby were closely held corporations and therefore there was no need to address the hypothetical situation
in which a large publicly traded corporation would attempt to assert a RFRA claim. 144
The Court was dismissive
of the notion that such a situation would ever arise, and consequently declined to address that possibility. 145
In addition to the Court's assertion that large, publicly traded corporations will not attempt to invoke RFRA, the
Court also suggested that, *146 should such a situation arise, the judiciary would be able to weed out insincere
claims. 146
In support of this assertion, the Court said that the scope of RLUIPA demonstrates that Congress was
confident of the ability of the federal courts to differentiate between sincere and insincere claims. 147
Citing the
fact that Congress had full knowledge of the propensity of some prisoners to assert claims of questionable sincerity
at the time at which RLUIPA was enacted, the Supreme Court reasoned that Congress would have included some

provision in RLUIPA if it believed that the courts would encounter problems in separating the sincere claims from
those that were not. 148
It can be argued that equating the claims of individual prisoners with those of large corporations is a somewhat
misguided analogy. It is one thing to gauge the sincerity of an individual's assertions - in the case of RLUIPA,
a prisoner; it is an entirely different matter to attempt to ascertain the religious beliefs of a large corporation. In
the latter scenario, the court would be forced to slice through a jungle of corporate officers, board members, and
shareholders in an attempt to determine whose religious beliefs matter.
B. Substantial Burden Analysis
After determining that RFRA applies to closely held corporations, the Court addressed the issue of whether
the contraceptive mandate imposed a substantial burden on the Corporations' religious freedom. Specifically,
the Court addressed the economic consequences of the Corporations' failure to comply with the contraceptive
mandate. 149
Central to the Court's decision that the contraceptive mandate was a substantial burden within the
meaning of RFRA was the $100 per day “tax” that the Corporations would be subjected to for each affected
individual if they chose to offer group health plans which did not cover the contraceptive methods to which the
Corporations objected. 150
It is well settled *147 that a significant financial penalty for failure to comply with
a regulation can constitute a substantial burden on the exercise of religion for purposes of RFRA. 151
The bill for non-compliance with the contraceptive mandate could have amounted to $1.3 million per day or about
$475 million per year in the case of Hobby Lobby alone. 152
As such, the owners of the Corporations were faced
with what the Tenth Circuit referred to as a “Hobson's choice - an illusory choice where the only realistically
possible course of action trenches on an adherent's sincerely held religious belief.” 153
Consequently, the Court
found that the contraceptive mandate, and its corresponding penalties for non-compliance, placed a substantial
burden upon the Corporations for purposes of RFRA. 154
C. Two-Step RFRA Analysis
Having determined that the Corporations were protected under RFRA, and that the contraceptive mandate clearly
imposed a substantial burden on their exercise of religion, the Court moved on to the two-step analysis required
under RFRA. This analysis asks: (1) whether the regulation - in this case, the contraceptive mandate - serves a
compelling governmental interest, and, if so, (2) whether the mandate is the least restrictive means of achieving
that compelling governmental interest. 155
1. Compelling Governmental Interest Analysis
HHS asserted several arguments in support of its position that the contraceptive mandate served a compelling
interest, many of which were nothing more than broad generalizations. 156
For example, HHS *148 argued
that a compelling governmental interest could be found in nonspecific public policy and gender equality
considerations. 157
In addition to these generic arguments, the government also argued that the contraceptive
mandate served a compelling interest by ensuring that all men and women have access to all FDA approved
contraceptives without cost sharing. 158

The Corporations countered the government's arguments by pointing out that the contraceptive mandate could
not be a compelling interest because tens of millions of Americans were already exempted from the mandate,
including those working for private employers with grandfathered plans, for employers with fewer than fifty
employees, and those employed by colleges and universities run by religious institutions. 159
The Tenth Circuit
found this argument to be particularly persuasive when it reversed the district court's decision in Hobby Lobby v.
Sebelius. 160
In that case, the Tenth Circuit pointed out that, “a law cannot be regarded as protecting an interest
of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” 161
The
Tenth Circuit ultimately reasoned that the sheer number of Americans already exempted from the contraceptive
mandate was enough to undermine the government's compelling interest argument. 162
The Supreme Court ultimately found that the government's generalized assertions were not sufficient to support
a showing that the contraceptive mandate served a compelling governmental interest under the applicable RFRA
test. 163
In its analysis, the Supreme Court cited O'Centro 164
for the proposition that RFRA contemplates a more
focused inquiry into the justification for a particular regulation. 165
The *149 Court went on to say that RFRA
requires that the government demonstrate that the compelling interest test is satisfied through application of the
challenged law to the person asserting protection under RFRA. 166
Although the Supreme Court found most of HHS's arguments in support of its position that the contraceptive
mandate serves a compelling governmental interest unpersuasive, the Court did accept the government's assertion
that “the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved
contraceptives without cost sharing.” 167
The Court was convinced by HHS's contention that requiring men or
women to pay even a nominal co-payment for contraception would deter patients from receiving birth control. 168
The Supreme Court did not provide much in the way of analysis or justification for reaching its decision. However,
the Court briefly referenced Griswold 169
in support of the proposition that men and women have a constitutional
right to obtain contraceptives. 170
However, the constitutional right to have access to a product or service does
not mean that the product or service must be provided for free. 171
It appears as though the Court, in holding
that providing free contraceptives is a compelling governmental interest, was allowing HHS to score a point in its
otherwise failed attempt to show that RFRA should not apply to the Corporations' claims.
2. Least Restrictive Means Analysis
The second step of the two-step RFRA analysis is a determination of whether the compelling governmental interest
is being achieved through the least restrictive means, 172
a standard that is “exceptionally *150 demanding.” 173
In Hobby Lobby, the Court correctly concluded that the HHS regulation at issue was not the least restrictive means
of achieving the compelling governmental interest of providing no-cost contraceptives. 174
The Court pointed
out that HHS already had an exemption in place for religious employers which could have easily been granted to
for-profit corporations, which would leave the Corporations more than the two options available to them at the
time at which they filed suit - violate their religious beliefs or pay substantial fines for failure to comply with
the mandate. 175

Having concluded that the Corporations had standing to raise a claim under RFRA, and that the contraceptive
mandate violated RFRA with respect to the Corporations, the Court held that the government could not enforce the
contraceptive mandate against closely held for-profit corporations, thereby reversing the Third Circuit's decision
in Conestoga and affirming the Tenth Circuits ruling in Hobby Lobby.
D. Dissent
As discussed at length, supra, the dissent in Hobby Lobby advanced many of the same arguments asserted by HHS
in holding that RFRA should not apply to for-profit corporations. Not surprisingly, the dissent disagreed with
every finding of the majority, with the exception of the majority's holding that providing cost free contraceptives
to all Americans is a compelling governmental interest. 176
The majority, through a quick and simple consultation of the Dictionary Act, summarily dismissed the dissent's
suggestion that Hobby Lobby, Mardel, and Conestoga did not have standing to bring a RFRA claim. Because
nothing in the text of RFRA indicates that Congress intended to depart from the Dictionary Act definition of
“person,” it was apparent to the majority that the Corporations are “persons” within the meaning of RFRA. 177
*151 Likewise, the dissent's argument that the contraceptive mandate did not impose a substantial burden on
the Corporations' exercise of religion was adequately countered by the majority. The majority pointed out that
the financial burden imposed upon the Corporations for noncompliance with the contraceptive mandate would
clearly qualify as a substantial burden for purposes of RFRA. 178
Lastly, the dissent did not make a persuasive argument to support its proposition that the contraceptive mandate
serves a compelling governmental interest through the least restrictive means - at least with respect to the four
contraceptive methods objected to by the Corporations. The dissent almost entirely ignored that fact that there are
still at least sixteen contraceptive methods from which employees of the Corporations can choose. 179
In addition, the dissent did not adequately counter the majority's holding that the contraceptive mandate was
the least restrictive means by which to achieve the purported compelling governmental interest served by the
mandate. 180
The dissent merely argued that the majority's suggestion - that the government could absorb the cost
of providing the specific contraceptive methods to which the Corporations objected - was not a viable means by
which to achieve the compelling interest in providing all women with no-cost contraceptives. 181
V. CONCLUSION
There is much more to the Supreme Court's decision in Hobby Lobby than the words contained within the pages
of the Court's opinion. Finding little or no protection in the First Amendment for the owners of Hobby Lobby,
Mardel, and Conestoga, the Court focused its attention on the protections afforded under RFRA. In doing so, the
Court made clear that for-profit corporations could indeed exercise religion within the meaning of RFRA. While
previous Supreme Court decisions have addressed these issues in attenuated contexts, no decision has gone as far
in protecting the religious freedoms of closely held for-profit corporations.
The Supreme Court addressed the seminal issues raised in Hobby Lobby, but chose to limit the applicability of its
decision to closely held corporations such as Hobby Lobby, Mardel, and Conestoga. The Court *152 reasoned

that, since these companies were all closely held, there was no need to address the applicability of RFRA beyond
this scope. But as opposition to the ACA continues to grow, it seems likely that a large publicly traded corporation
will attempt to avail itself of the protections that the Hobby Lobby Court extended exclusively to closely held
corporations.
Interestingly, the Court also seemed to contradict previous Supreme Court decisions in holding that the provision
of cost free contraceptives was a compelling governmental interest. Was this a minor concession by the Court in
an otherwise damning decision? Perhaps the Court believed that its decision would be somewhat better received
if it emphasized the importance of women's reproductive freedom. While few Americans would question the
importance of a woman's access to contraceptives, the Court went a step further by essentially elevating access
to free contraceptives to the level of a fundamental right.
If anything, the Hobby Lobby decision illustrates the far reach of RFRA, and the extent to which the Court will go
in order to respect the congressional intent behind the Act. One thing is certain - while Hobby Lobby has thus far
been one of the most notorious and widely publicized decision related to the ACA, more cases are sure to follow.
Footnotes
a1 Juris Doctor Candidate Spring 2016, Duquesne University School of Law.
1 Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).
2 Id.
3 Id. at 874.
4 Id.
5 Id.
6 Smith, supra note 1, 494 U.S. 872.
7 Id.
8 Id.
9 Sherbert v. Verner, 374 U.S. 398 (1963) (any substantial burden imposed by government on religiously motivated
conduct must be: (1) motivated by a compelling state interest; and (2) narrowly tailored to achieve that interest).
10 Smith, 494 U.S. at 873.
11 Id. at 888.
12 Id.
13 42 U.S.C.A. § 2000bb-1 (West, Westlaw current through P.L. 113-180 approved 9-26-14).
14 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) (citing 42 U.S.C.A. § 2000bb-1).
15 42 U.S.C.A. § 2000cc (West, Westlaw current through P.L. 113-163 (excluding P.L. 113-128) approved 8-18-14).
16 Hobby Lobby, supra note 14 (citing 42 U.S.C.A. § 2000cc, supra note 15, at 5(7)(A)).

17 Id. at 2761 (citing Hankins v. Lyght, 441 F.3d 96, 108 (2d Cir. 2006); Guam v. Guerrero, 290 F.3d 1210, 1220 (9th
Cir. 2002).
18 See City of Boerne v. Flores, 521 U.S. 507 (1997) (RFRA unconstitutional because Congress exceeded § 5 powers
in enacting the law).
19 42 U.S.C.A. § 2000bb-1 (West, Westlaw current through P.L. 113-180 approved 9-26-14).
20 Id.
21 U.S. v. Phila. Yearly Meeting of the Religious Soc'y of Friends, 322 F. Supp. 2d 603 (E.D. Pa. 2004); U.S. v. Jefferson,
175 F.Supp. 2d 1123 (N.D. Ind. 2001).
22 See Geneva College v. Sebelius, 941 F. Supp. 2d 672 (W.D. Pa. 2013) (Onerous financial costs can rise to the level of
a substantial burden on the free exercise of religion, in violation of RFRA). See also East Texas Baptist University v.
Sebelius, 988 F. Supp. 2d 743, 762 (S.D. Tex. 2013) (“When the government forces people to do something their faith
forbids to avoid punishment, including harsh fines, the government imposes a substantial burden within the meaning
of the RFRA; while the compulsion may be indirect, the infringement upon free exercise of religion is nonetheless
substantial”).
23 Geneva College, 960 F.Supp. 2d 588.
24 Roman Catholic Archdiocese of New York v. Sebelius, 987 F.Supp. 2d 232 (E.D.N.Y. 2013).
25 McAllen Grace Brethren Church v. Salazar, 764 F.3d 465 (5th Cir. 2014).
26 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).
27 Monaghan v. Sebelius, 916 F. Supp. 2d 802 (E.D. Mich. 2012).
28 Hobby Lobby, supra note 26, 134 S.Ct. 2751; East Texas Baptist University v. Sebelius, 988 F. Supp. 2d 743, 762
(S.D. Tex. 2013).
29 Roman Catholic Archdiocese of New York, supra note 24, 987 F.Supp. 2d 232; McAllen, supra note 25, 764 F.3d 465
(citing Sherbert v. Verner, 374 U.S. 398 (1963)).
30 McAllen, 764 F.3d 465.
31 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) cert. granted, 134 S. Ct. 678, (2013) aff'd sub
nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (“[A] law cannot be regarded as protecting an
interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.”).
32 City of Boerne v. Flores, 521 U.S. 507, 536 (1997).
33 Id. at 534.
34 Id. at 507.
35 Id.
36 Id.
37 Flores v. City of Boerne, Tex., 73 F.3d 1352 (5th Cir. 1996).
38 City of Boerne v. Flores, 521 U.S. 507, 512 (1997).

39 Id. at 507.
40 42 U.S.C.A. § 2000cc (West, Westlaw current through P.L. 113-163 (excluding P.L. 113-128) approved 8-18-14).
41 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761 (2014) (citing Cutter v. Wilkinson, 544 U.S. 709, 715-716
(2005)).
42 Hobby Lobby, 134 S. Ct. at 2761 (citing 42 U.C.S. § 2000bb-2(4) (West, Westlaw current through P.L. 113-296
(excluding P.L. 113-235, 113-287, and 113-291) approved 12-19-2014)).
43 Id. (defining “exercise of religion” as “the exercise of religion under the First Amendment”).
44 Id. (citing 42 U.S.C. § 2000cc-5(7)(A) (West, Westlaw current through P.L. 113-296 (excluding P.L. 113- 235,
113-287, and 113-291) approved 12-19-2014)).
45 Id. (citing 42 U.S.C. § 2000cc-3(g)).
46 Ronald G. Turner, The Religious Land Use and Institutionalized Persons Act of 2000 the Impact on People in Prison,
45 Tenn. B.J. 25, 27 (2009).
47 Patient Protection and Affordable Care Act, PL 111-148, March 23, 2010, 124 Stat 119 (codified at 42 U.S.C.A. § 18091
(West, Westlaw current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291) approved 12-19-2014)
and 26 U.S.C.A. § 5000A) (West, Westlaw current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and
113-291) approved 12-19-2014) (“ACA”).
48 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ( “NFIB”).
49 See Florida v. United States HHS, 648 F.3d 1235 (11th Cir. 2011) (individual mandate and Medicaid expansion
challenge brought by individuals, business association, and 26 states); Liberty Univ., Inc. v. Geithner, 671 F.3d 391
(4th Cir. 2011), cert. granted, judgment vacated sub nom. Liberty Univ. v. Geithner, 133 S. Ct. 679 (2012), abrogated
by Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (individual mandate and employer mandate challenged
by individuals, employer, and public officials).
50 See 42 U.S.C.A. § 18091; 26 U.S.C.A. § 5000A; NFIB, 132 S. Ct. 2566 (NFIB was filed on the same day that the
ACA was enacted).
51 Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011); NFIB, 132
S. Ct. 2566.
52 NFIB, 132 S. Ct. 2566.
53 ACA provision requiring most Americans to maintain “minimum essential” health insurance coverage or be subject
to a penalty. Id. at 2571 (citing 26 U.S.C. § 5000A).
54 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2580 (2012).
55 Id.
56 Id.
57 Id.; Florida ex rel. Atty. Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011).
58 NFIB, 132 S.Ct. 2566.
59 Id. (Medicaid expansion gives funds to the States on the condition that they provide specified health care to all citizens
whose income falls below a certain threshold).

60 Id.
61 NFIB, 132 S. Ct. at 2572 (citing 26 U.S.C. §§ 5000A(c), (g)(1) (West, Westlaw current through P.L. 113- 296 (excluding
P.L. 113-235, 113-287, and 113-291) approved 12-19-2014).
62 See n. 49, supra..
63 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2754 (2014) (citing 42 U.S.C. § 300gg-13(a)(4) (West, Westlaw
Current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291) approved 12-19-2014)).
64 Id.
65 Id.
66 Id.
67 Id. at 2762-63 (citing Brief for Petitioners in No. 13-354, pp. 9-10, n. 4; U.S. Food and Drug Administration, Birth
Control: Medicines to Help You (last updated Jan. 8, 2015), http:// www.fda.gov/forconsumers/byaudience/forwomen/
freepublications/ucm313215.htm).
68 Hobby Lobby, 134 S. Ct. at 2763 (citing 45 CFR § 147.131(a) (West, Westlaw current through March 19, 2015; 80
FR 14737.)).
69 Id.
70 Id.
71 Id.
72 Id. at 2765.
73 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2757 (2014).
74 Id. at 2762-63.
75 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) cert. granted, 134 S. Ct. 678, (2013) aff'd sub
nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Conestoga Wood Specialties Corp. v. Sec'y of
United States HHS, 724 F.3d 377 (3d Cir. 2013) cert. granted, 134 S. Ct. 678 (2013) rev'd and remanded sub nom.
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
76 Hobby Lobby, 134 S. Ct. at 2755
77 Id.
78 Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013).
79 Id. at 400.
80 Id. at 411.
81 Id. at 408.
82 Id.
83 Id. at 410.
84 Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 411 (E.D. Pa. 2013).

85 See supra Part II.B.
86 42 U.S.C.A. § 2000bb-1 (West, Westlaw current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291)
approved 12-19-2014).
87 Id.
88 Id.
89 Conestoga, 917 F. Supp. 2d at 411.
90 Id. at 415.
91 Id. at 415-16.
92 Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dept't of Health & Human Servs., 724 F.3d 377 (3d. Cir. 2013).
93 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d
1278 (W.D. Okla. 2012), rev'd and remanded, 723 F.3d 1114 (10th Cir. 2013), cert. granted, 134 S. Ct. 678, and aff'd
sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
94 Hobby Lobby Stores, Inc., 870 F.Supp. 2d 1278, 1296.
95 Id.
96 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1147 (10th Cir. 2013).
97 Id. at 1145.
98 Id. at 1144; Hobby Lobby, 134 S. Ct. 2751.
100 Id. at 2758.
101 Id.
102 Id. at 2775.
103 Id. at 2755.
104 Id. at 2779.
105 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
106 Id.
107 Id.
108 42 U.S.C.A. § 2000bb-1 (West, Westlaw current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291)
approved 12-19-2014 (determination of regulation that substantially burdens exercise of religion is the least restrictive
means of serving a compelling governmental interest)).
110 Id. at 2758.

111 Id. at 2787.
112 Id. at 2775.
113 Id. at 2787.
114 Id.
116 Id.
117 Id. at 2793-94.
118 Id. at 2794.
119 Id. at 2797-98.
120 Id. at 2774.
121 Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751, 2799 (2014).
122 Id.
123 Id.
124 Id.
125 Id.
126 See Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) (The only HHS argument accepted by the Court was
that providing no-cost contraceptives was a compelling governmental interest).
127 Harris v. McRae, 448 U.S. 297, 306-07 (1980).
128 Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944).
129 The District Courts for the Eastern District of Pennsylvania and Western District of Oklahoma, as well as the Courts of
Appeals for the Third Circuit and Tenth Circuit all analyzed the Corporations' claims under both the First Amendment
Free Exercise Clause and RFRA.
130 Hobby Lobby, supra note 126, 134 S.Ct. at 2767.
131 Hobby Lobby, 134 S.Ct. 2751.
132 Id. at 2767.
133 Id. at 2759.
134 Id.
135 Id. at 2768.
136 See 1 U.S.C. § 1 (West, Westlaw current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291)
approved 12-19-2014 (“We therefore look to the Dictionary Act, which we must consult in determining the meaning
of any Act of Congress, unless the context indicates otherwise.”) (internal quotations omitted)).

137 Burwell v. Hobby Lobby, 134 S.Ct. 2751, 2768 (2014).
138 1 U.S.C. § 1 (2012).
139 See id. § 1,
140 Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 343 (2010).
141 Id.
142 Hobby Lobby, 134 S.Ct. at 2767.
143 Id. at 2774.
144 Id.
145 Id.
146 Id.
147 See Id. (“If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there
is no reason to believe that Congress limited RFRA's reach out of concern for the seemingly less difficult task of doing
the same in corporate cases.”)
149 Id. at 2775-76.
150 26 U.S.C.A. § 4980D (West, Westlaw through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113- 291).
151 East Texas Baptist University v. Sebelius, 988 F. Supp. 2d 743 (S.D. Tex. 2013) (“When the government forces people
to do something their faith forbids to avoid punishment, including harsh fines, the government imposes a “substantial
burden” within the meaning of the RFRA; while the compulsion may be indirect, the infringement upon free exercise
of religion is nonetheless substantial.”)
152 For Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000
per day or about $15 million per year. Hobby Lobby, supra note 148, 134 S.Ct. at 2775-76.
153 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1156 (10th Cir. 2013) (citing Abdulhaseeb v. Calbone, 600 F.3d
1301, 1315 (10th Cir. 2010)).
154 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2779 (2014).
155 42 U.S.C. § 2000bb-1(b) (West, Westlaw Current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and
113-291) approved 12-19-2014).
157 Id.
158 Id.
159 Id. at 2780
160 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).
161 Id. at 1143 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993).

162 Id. (“[A] law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to
that supposedly vital interest unprohibited.”).
164 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).
165 Hobby Lobby, 134 S.Ct. 2751 (citing O Centro, 546 U.S. 418).
166 See Id. at 2779 (A compelling governmental interest analysis under RFRA must focus on “the particular claimant
whose sincere exercise of religion is being substantially burdened.” This requires the court to “loo[k] beyond broadly
formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious
claimants.”).
167 Id. at 2779.
168 Id. at 2780.
169 Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965).
170 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2780 (2014).
171 See Harris v. McRae, 448 U.S. 297, 317-18 (1980) (“It cannot be that because government may not prohibit the use
of contraceptives ... [the] government, therefore, has an affirmative constitutional obligation to ensure that all persons
have the financial resources to obtain contraceptives ...”).
172 42 U.S.C. § 2000bb-1(b) (West, Westlaw current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291)
approved 12-19-2014).
173 Hobby Lobby, 134 S.Ct. at 2780 (citing City of Boerne v. Flores, 521 U.S. 507, 531, 117 S. Ct. 2157, 2170, 138 L.
Ed. 2d 624 (1997)); See also McAllen Grace Brethren Church v. Salizar, 764 F.3d 465, 479-480 (5th Cir. 2014) (citing
Sherbert v. Verner, 374 U.S. 398, (1963)) (Under least restrictive means standard, the burden on the government is a
high one. It must demonstrate that that “no alternative forms of regulation” would achieve the governmental interest
without infringing upon the rights of others.).
175 Id. at 2782.
176 Hobby Lobby, 134 S.Ct. 2751 (Ginsburg, J., dissenting).
177 Id. at 2793-94
178 Id. at 2776.
179 Burwell v. Hobby Lobby, Inc., 134 S.Ct. 2751 (2014).
180 Id.
181 Id.
17 DUQBLJ 125
End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

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