Congressional Amici in Hobby Lobby Appeal Argue That RFRA Applies to Corporations

February 20th, 2013

The Becket Fund lists many of the briefs here.

The Congressional brief, signed by Senators Orrin G. Hatch, Daniel R. Coats, Thad Cochran, Mike Crapo, Charles Grassley, James M. Inhofe, Mitch McConnell, Pat Roberts, Richard Shelby and Congressmen Lamar Smith and Frank Wolf, the Congressional states that “Congress plainly wrote [the Religious Freedom Restoration Act or “RFRA”] to include corporations[.]” This brief was authored in part by Kevin Walsh, who has written some great posts on this topic.

Although the District Court recognized that the term “person” ordinarily encompasses corporations, companies, associations, and individuals, and further recognized that nonprofit corporations qualify for protection under RFRA, the District Court nevertheless created an exemption from RFRA’s coverage for what it described as “secular, for-profit corporations” by incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291-92 (W.D. Okla. 2012). Congress could have carved out such a category of unprotected “persons” in RFRA itself or in a later statute, but it did not. And this judicially created carve-out is directly contrary to one of the primary reasons Congress enacted RFRA in the first place: to prevent those charged with implementing the law from picking and choosing whose exercise of religion is protected and whose is not.

The brief addresses how the court carved out exceptions for “secular, for-profit corporations.”

Rather than reach the obviously incorrect conclusion that RFRA does not extend to corporations at all, the district court created an exception from RFRA’s coverage for “secular, for-profit corporations,” incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1288, 1291-92 (W.D. Okla. 2012). The district court reasoned that “[g]eneral business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion.” Id. at 1291. But the same can be said of corporations that unquestionably are “persons” under RFRA, such as hospitals, universities, and religious orders.

Even though Congress did not provide for different treatment of for-profit and nonprofit employers in either RFRA or the PPACA, Defendants have created a three-tier categorization of religiously objecting employers and have subjected Plaintiffs to third-class treatment in the lowest tier. This contravenes the design of RFRA. Congress knew that a healthy respect for religious freedom as exercised by a variety of actors would call for various government responses appropriate to the circumstances. But rather than attempt to formulate different principles to govern different categories of religious liberty claimants, Congress formulated a single principle and left it to government officials and courts to apply that same principle with sensitivity to different factual circumstances.

Also, the brief wisely provides a reason why striking down the mandate under RFRA would not implicate Title VII (a concern I have heard from others).


In attempting to justify their failure to respect religious objections to the HHS mandate asserted by for-profit corporations, Defendants have observed that Congress has sometimes distinguished between nonprofit religious organizations and for-profit secular organizations. 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013) (discussing Title VII of the Civil Rights Act of 1964). This demonstrates that Congress can distinguish between for-profit and nonprofit employers when it wishes to do so. But Congress made no such distinction in RFRA, which applies broadly and generally, subject only to displacement by later enactments that relax its reach in specific areas. Congress plainly wrote RFRA to include corporations, and neither RFRA nor the PPACA excludes for-profit corporations.

The brief does not venture into the First Amendment free exercise component of what I have called “Corporate Prayer.” Indeed, there is not a single citation to the First Amendment in the brief.