by Alexander Nicholas Sigua | Fall 2018
Corporate influence is increasing and presents a major threat to American society. At least, that’s what public opinion would have one believe in the wake of the Burwell v Hobby Lobby decision — a 2014 case which saw a for-profit corporation, Hobby Lobby, claim free exercise religious protections from providing specific contraceptives to their employees. Many have argued such decision offers the potential for abuse, affording corporations the ability to use such protections for financial gain and thus extend their influence over the lives of citizens. Others have argued that such decision is part of a greater effort to imbue corporations with First Amendment rights they don’t deserve. Nevertheless, most of the opposition towards the decision can agree that such sets a dangerous precedent for future cases concerning the Free Exercise Clause. As New York Times writer Adam Liptak notes, it “opens the door to many challenges from corporations over laws that they claim violate their religious liberty.” Such negative ramifications cited by the public over the Burwell v. Hobby Lobby decision begs the question as to whether for-profit corporations should even be able to claim Free Exercise protections.
When analyzing the case itself, the court seems to sneak around the issue using purposefully vague wording. Justice Alito, delivering on account of the majority, claimed that “closely-held corporations” are entitled to the protections under the RFRA, a bill reinforcing the religious protections of the Free Exercise Clause. Such ambiguous language was the catalyst for much of the controversy surrounding the case, the term “closely held” loosely defining which corporations can or cannot exercise Free Exercise rights. Justice Ginsburg points to such vagueness in her dissent, noting how the downstream applications of such a definition would allow many for-profit corporations to claim Free Exercise protections, ultimately affording these corporations the power to neglect other federally mandated coverages. But is the answer to such a dilemma simply refuting free exercise protections to every for-profit corporation? For if one were to deny every for-profit corporations’ Free Exercise claims, the consequences would arguably be greater, gifting government the power to impose their will on any for-profit corporate entity’s religious views, thereby undermining the religious liberties of every citizen in the United States by setting such a dangerous precedent.
In this essay, I will demonstrate why some for-profit corporations should be able to claim Free Exercise protections by drawing upon legal precedent and an analysis of the dichotomy between nonprofit and for-profit corporations. I will also suggest specific provisions to ensure for-profit corporations don’t abuse their Free Exercise rights, implementing such to conclude Hobby Lobby should not have received Free Exercise protections. First, I will demonstrate how legal precedent points to corporations’ right to Free Exercise claims, citing the intentions of the Framers and Congress when drafting the Free Exercise Clause and the RFRA, respectively, as well as looking at cases such as Citizens United and Bellotti. Then, I will demonstrate how even disregarding the notion of legal precedent, should for-profit corporations be entitled to protection under the Free Exercise Clause, citing their relation to non-profits and juxtaposing their treatment concerning Free Exercise claims. Finally, I will create a list of contentions for corporations citing the Free Exercise Clause, based on determining such corporations’ religious intent to mitigate concerns over the Free Exercise’s potential for abuse by for-profit corporations; I will end by applying said contentions to the Hobby Lobby corporation itself.
Laying the Foundations for For-Profit Corporations’ Free Exercise Rights
To determine whether for-profit corporations should be entitled to Free Exercise protections, it’s essential to first establish the legal precedent involved with enshrining such protections to for-profit corporations. This will allow us to ground for-profit corporations’ free exercise rights in jurisprudence and address some of the dissent surrounding such notion. For starters, we must analyze the context of the Free Exercise Clause itself, as this will allow us to derive whether such was intended to protect for-profit corporations from the outset. When looking at the Colonial era, it seems that the principle of religious freedom had been a tenant of the United States ever since its founding, with groups such as the Puritans and Quakers traveling to America to practice their faiths freely. Many of these groups formed separate communities on the basis of religion; such as Rhode Island, which was famously commissioned for Puritans. These communities acted as associations rather than individuals, as evident by “a delegation of Quakers [going] to the Pennsylvania Assembly to warn lawmakers that they could not be able to comply with a tax…” in 1775. Such established the communal aspect of religion during the period, communities engaging in the “free exercise” of religion rather than merely an individual. This notion is perpetuated by the fact that institutions, like schools, were also religious at the time, commonly headed by a group rather than an individual. Given such context, it seems clear that the framers of the Constitution understood the Free Exercise Clause to extend to groups and associations rather than just the individual, as some dissent purports, as these groups have been practicing and exercising their religious freedoms years before the Constitution’s conception. The Framers must have understood that they were encompassing a wide array of associations when drafting the Free Exercise Clause, at the very least leaving the door open for for-profit corporations to claim free exercise protections, given that corporations are also an association of individuals. Nevertheless, some might still argue that the Free Exercise Clause does not explicitly mentioned for-profit corporations; therefore for-profits should not be protected under the Free Exercise Clause. Thus, we must turn to the Religious Freedom Restoration Act, or the RFRA, largely seen as a qualification of the Free Exercise Clause, to find a more explicit linkage between for-profit corporations and free exercise protections.
Introduced in 1993, the RFRA was a direct response to Employment Division v Smith, wherein the court denied a Native American’s right to smoke peyote under the protection of the Free Exercise Clause. Stating that government could not burden a person’s free exercise of religion unless it furthered a compelling government and used the least restrictive means, it’s here where we can demonstrate how free exercise protections extend directly to for-profit corporations. Although initially seeming to only apply to individuals, as the Free Exercise Clause had, Justice Alito illustrates how the “persons” in the act include for-profit corporations and other associations, citing the Dictionary Act which verifies “persons” include for-profits and non-profits. As to any questions over Congress’s intent to involve for-profit corporations in the term “persons,” Congress specifically delineated “religious corporations” when enumerating religious protections under the American with Disabilities Act and National Labor Relations Act before the implementation of the RFRA. Such demonstrates that Congress could qualify “persons” as either a religious corporation or not, ultimately allowing us to conclude that the “persons” in the RFRA intended for the inclusion of for-profit corporations. One could argue that the aforementioned, although establishing that for-profit corporations can claim free exercise protections, fails to demonstrate the legal precedent for the actual extension of First Amendment freedoms to for-profit corporations. Therefore, we must analyze Citizens United and Bellotti to cement for-profit corporations’ ability to claim free exercise protections.
Citizens United v FEC, a case decided in 2010, recognized that corporations, including for-profit ones, are protected by the First Amendment right to free speech. Here, the majority noted that “the court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because the associations are not natural persons.” This ruling not only cements the idea that for-profit corporations are entitled to the same protections as individuals but explicitly mentions such corporations as beneficiaries to First Amendment freedoms. This sentiment reiterates that in First National Bank of Boston v. Bellotti, which established that the Constitution protects the exercise of First Amendment freedoms regardless of the speaker, it be an individual or a for-profit corporation. Such opinion in both cases sets an undeniable precedent for extending free exercise rights to for-profit corporations, as free speech rights have already extended to such corporations; both rights fall under the First Amendment, allowing one to conclude both should be treated similarly. Therefore, it seems undeniable imbuing for-profit corporations with free exercise protections is based on years of legal jurisprudence, as demonstrated by the intention of the Framers, the RFRA, and in accords with other First Amendment extensions to corporations, evident in Citizens United and Bellotti. This dispels the notion by some on the dissent that giving corporations free exercise rights is unfounded; rather, it demonstrates how such extension of rights for for-profit corporations is ground in legal precedent for decades, thus inevitable.
Analyzing the Dichotomy Between For-Profit and Non-Profit Corporations
Of course, relying on legal precedent alone does not fully justify why some for-profit corporations should ascertain free exercise protections. To further justify such, one should look for a clear, logic-based approach to determine why some for-profit corporations warrant free exercise rights; such an approach is found by examining the relationship between nonprofit and for-profit corporations. The standing of nonprofit corporations was not questioned to the extent that for-profit corporations were in claiming free exercise rights. The Affordable Care Act (ACA), opposed to by Hobby Lobby due to its mandate of contraceptive coverage, explicitly excluded non-profit organizations. And in Gonzales v O'Centro Espirita, a 2006 Supreme Court case, the court came to a unanimous decision in holding that a religious organization, a non-profit, was entitled to use hoasca, an illegal drug, under the RFRA and thus the Free Exercise Clause. Such dichotomy between how the courts treat nonprofit and for-profit corporations begs the question as to why courts have been so willing to extend nonprofit corporations free exercise protections, but more reluctant to for for-profits. What differentiates a nonprofit and for-profit corporation? A non-profit is commonly understood to represent an array of institutions, including religious organizations, which serve to advance some purpose or goal without seeking profit. Religious nonprofits are known to further their objectives through services like school and even healthcare. Such is significant as it demonstrates the difference between for-profit and non-profit corporations lies not in the activities these corporations engage in, as for-profit corporations equally participate in services like school and healthcare, but lies in the intent behind the actions these corporations take. In distinguishing between nonprofits and profits, one is assuming that for-profit corporations are incapable of pursuing a goal other than profit, such as a religious one, and therefore are not entitled to free exercise protection, as some dissenters seem to purport. This notion is demonstrably false, as assuming the intention of a for-profit corporate plaintiff would inherently restrict their freedom while having no bounds in jurisprudence.
In Braunfeld v Brown, a 1961 Supreme Court case, a profit-seeking merchant successfully challenged a Philadelphia law requiring Sunday store closings, as it infringed upon their free exercise of religion. Professor of Law Scott Gaylord notes how the court acknowledged that the profit motive of a plaintiff does not subvert their right to bring a free exercise claim by allowing the merchant to claim free exercise protections. Such interpretation demonstrates how the assumption that for-profit corporations are incapable of claiming free exercise claims has no merit in jurisprudence. Furthermore, in United States v Lee, a 1982 Supreme Court case where an Amish employer claimed paying Social Security violated their free exercise rights, the court did not question that the Amish employer, engaged in a money-making enterprise, held standing and was capable of religious exercise. Although both cases deal specifically with individuals, rather than corporations, we have already established through legal precedent that corporations can claim similar standing to individuals, found through analyzing the intention of the Framers’ and the RFRA. Rather, we can use both cases to demonstrate that for-profit corporations are still able to claim a religious purpose, as a nonprofit would, and are thus able to employ free exercise protections. However, I must concede that the inclusion of a profit-based incentive in corporations complicates their rights more than non-profits, as such leaves room for exploitation by corporations solely motivated by profit. Therefore, it’s essential that for-profit corporations demonstrate a clear religious purpose within their business to consider non-profit and for-profit corporations in the same legal vein, thus enabling for-profit corporations to claim free exercise protections.
Enumerating and Applying Religious Intent Based Contentions
It’s essential to create a list of contentions behind a for-profit corporation’s free exercise claims, based on finding a clear religious purpose, to mitigate concerns over the Free Exercise Clause’s potential for abuse. Finding “religious purpose” behind a corporation’s actions effectively mirrors the Lemon Test’s secular purpose prong in Lemon v Kurtzman, giving such legal precedent. This religious purpose would weigh against the potential secular purpose of the corporation, like that of monetary gain. Such contentions would validate the standing of for-profit corporations on free exercise grounds, while also ensuring the rights of all free exercise users are not minimized by a corporation’s improper use of it.
The first of these contentions would revolve around the conduct of a for-profit corporation, deeming whether their conduct is religious as to warrant free exercise protections. Such would be the most basic contention, as a for-profit corporation must demonstrate religious intent behind their free exercise claims to use the Free Exercise Clause properly. This religious conduct would have to be apparent enough for a reasonable observer to deem a for-profit corporation’s intent in a free exercise claim as religious, effectively mirroring the reasonable observer prong of the endorsement test purported by former Supreme Court Justice Sandra Day O’Connor in Lynch v Donnelly. Examples of corporations demonstrating religious conduct would be the inclusion of a religious message in their mission statement, adherence to specific religious duties like closing on Sabbath, and whether the corporation donated a significant amount to religious charities. However, the court could ultimately be slightly subjective in such regard, given that a reasonable observer is different in the eyes of others. While some may object to this notion, given that subjectivity allows government more power, the reasonable observer contention is the most objective avenue one could take to determine whether conduct is religious, as enumerating a list of specific religious conduct could exclude some corporations who have a genuine religious purpose behind their free exercise claims. Some may also point to how for-profit corporations could still abuse such contention. As the attorney and legal scholar John Moore notes, a contention based solely on religious conduct would be ineffective, as corporations could merely adopt a religious objective within their company’s goals for the short-term benefits, similar to how prisoners might adopt a new religion and harass prison staff to accommodate their new faith.
Therefore, a second contention is necessary, considering how long and consistently a for-profit corporation has demonstrated its religious conduct. This contention would mitigate concerns by those in opposition to corporations gaining free exercise protections, as most corporations with secular, rather than religious, intent would be unable to prove religious conduct for an extended period consistently.
The final contention would weigh the corporation's vested secular interests against its religious ones, where one would give extra scrutiny to corporations enjoying significant secular gains as a result of their free exercise claims. Such would be the strictest and most crucial contention, as it directly considers a for-profit corporation’s possible abuse of the free exercise clause. One should note, just because a for-profit corporation reaps secular benefits, such as profit, from a free exercise claim does not invalidate it; rather, the purpose of the contention is to determine whether a corporation's secular interests usurp its religious ones, indicating whether its religious claims are genuine. As a whole, these contentions directly address the fear many have over for-profit corporations abusing free exercise rights and reinforce the validity of the Free Exercise Clause by ensuring its use belongs only to those with genuine religious claims. To demonstrate how these contentions would apply in a real-world situation, we must apply such to Hobby Lobby itself.
When analyzing Hobby Lobby through the lens of the contentions mentioned above, it’s apparent that the majority’s decision in Burwell v Hobby Lobby is flawed, as Hobby Lobby should not be able to employ their free exercise protections given the contentions I have drafted. When applying the first contention to Hobby Lobby, based on whether a reasonable observer deems that a for-profit corporation demonstrates religious intent within their conduct, Hobby Lobby seems to pass such contention easily. According to their website, Hobby Lobby stores close during Sabbath, their mission statement invokes the Lord and the Bible multiple times, and the corporation donates a significant amount of proceeds to specifically religious charities. In truth, Hobby Lobby clearly demonstrates religious conduct, enabling it to hold standing in its free exercise claims thus far. The second contention of the framework also seems to validate the notion that Hobby Lobby should be afforded free exercise protections, with Hobby Lobby demonstrating religious values for an extended period, consistently. According to their mission statement, Hobby Lobby was founded on Christian beliefs, and have stayed true to such for the duration of the corporation’s lifetime. Therefore, it seems clear that the contentions thus far have supported the majority's opinion on allowing Hobby Lobby free exercise protections, calling into question how I have derived otherwise.
However, the most crucial contention in determining whether a corporation can employ free exercise protections is considering the secular purpose against the religious intent, where Hobby Lobby ultimately fails in such regard. Such is found by the fact that Hobby Lobby stood to gain a significant amount in its refusal to cover some forms of contraception in their employees’ health plan. Although difficult to determine the exact amount, the cost of an IUD, one of the forms of contraception refused coverage by Hobby Lobby, can cost between 500 to 900 dollars without a health plan. Given that Hobby Lobby has over 27,000 stores with over 32,000 employees, it’s safe to assume Hobby Lobby would save a substantial amount of money, enough to warrant a significant secular purpose. Furthermore, one should note that the Burwell v. Hobby Lobby case spawned from the corporation’s objection to pay the ACA’s fine for not providing contraceptive coverage, such fine being the inciting incident behind Hobby Lobby’s free exercise claims. Therefore, it seems clear that Hobby Lobby’s secular purpose is significant, to the point that it outweighs its religious intent. Hobby Lobby simply stands to gain far too much, with the final straw being how the entire case began from the corporation’s objection to paying a fine. Although such a decision might seem harsh, given that Hobby Lobby has shown a religious intent, such decision is imperative to set a precedent for future for-profit corporations, ensuring their religious claims are significant enough to warrant a free exercise claim and outweigh any possible secular purpose. Therefore, I must conclude that the Burwell v. Hobby Lobby decision, although correct in finding that for-profit corporations can employ free exercise rights, was incorrect in designating which for-profit corporations could exercise such rights, with Hobby Lobby ultimately not being one of those corporations.
Implications Behind Some For-Profit Corporations’ Free Exercise Rights
After analyzing whether for-profit corporations should be able to claim free exercise protections, it became abundantly clear that free exercise rights should be extended to for-profit corporations who demonstrate a religious intent behind their claims. This has become apparent through the legal precedent and non-profit dichotomy concerning for-profit corporations, while specific provisions were set to ensure these free exercise rights are not abused. More importantly, such claim is crucial in safeguarding the religious freedoms all citizens. In allowing some for-profit corporations free exercise protections, the government is unable to impose their will on every for profit-corporation, thereby preventing increasing government power on the platform of religious freedom, which would threaten the free exercise rights of every American. Furthermore, in holding for-profit corporations accountable by a number of contentions which determine its religious intent, for-profit corporations are unable to exploit free exercise rights and undermine the religious freedom of all citizens by using the Free Exercise Clause as a means of attaining a secular benefit. Such safeguards within for-profit corporation’s claim to free exercise protections ensure future cases won’t trample on religious liberties, and ultimately safeguards the religious freedoms of every citizen.
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 Braunfeld v Brown, 366 U.S. 599 (1961).
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 Duke, John. “Religious Freedom and the Little Corporation That Could: Burwell v. Hobby Lobby Stores, Inc,” Mississippi College Law Review, no.34 (2015).
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
 First National Bank of Boston v. Boston v. Bellotti, 435 U.S. 765 (1978).
 Gaylord, Scott. “For-Profit Corporations, Free Exercise, and the HHS Mandate,” Washington University Law Review, no. 91 (2014).
 Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).
Hobby Lobby Web site, (accessed December 9, 2018).
 Liptak, Adam. “Supreme Court Rejects Contraceptives Mandate for Some Corporations,” New York Times, June 30, 2014.
 Lemon v Kurtzman, 403 U.S. 602 (1971).
 Lewis, Al. “Corporate Personhood,” Wall Street Journal, July 1, 2014.
 Lynch v Donnelly, 465 U.S 668 (1984).
 Moore, John. “The First Amendment Case for Corporate Religious Rights,” Nevada Law Journal, no. 16 (2015).
 Religious Freedom Restoration Act, 1993, HR 1308, 103rd Cong.,1st sess., Congressional Record (October 27, 1993).
 Storey, Denis. “Revisiting Hobby Lobby fallout,” Benefits Selling, July 8, 2014.
United States v. Lee, 455 U.S. 252 (1982).