District Court Rules Against For-Profit Plaintiff in Contraception Mandate Litigation

The United States District Court for the Western District of Oklahoma has denied a preliminary injunction to a for-profit company which had sued the Department of Health and Human Services on the grounds that the contraception mandate violated its religious liberty.  Hobby Lobby Stores, Inc. is a closely held corporation whose business is arts and crafts — operating over 500 stores in 41 states and with over 13,000 employees.  The company, the court says, is “secular,” but also operated by the owners “according to their Christian faith.”  This is confusing.

At any rate, the court denied the PI both as to the Free Exercise Clause claim and the RFRA claim.  On the particular issue of whether a corporation can exercise religion (see CLR Forum posts here (Professor Colombo’s paper) and here), the court had this to say:

General business corporations do not, separate and apart from the
actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those “purely personal” matters referenced in [Nat’l Bank of Boston v.] Bellotti  which is not the province of a general business corporation.  (18)

This is a bizarre and unnecessarily maximalist statement.  It is not needed to reach the result in the case.  It also seems untrue: it is perfectly natural to say that a corporate body can exercise religion.  I take it that at least one of the reasons that even the government itself carved out an exception in the mandate for houses of worship was that it recognized that corporate bodies can and do exercise religious freedom.  To the extent that the court is drawing a line between for-profit and not for-profit “businesses,” one might have wished for a bit more discussion about what it is exactly about the for-profit context that makes it conceptually impossible for such businesses to exercise religion.  The interesting question, I had thought, about the issue of for-profit corporations was not whether it is impossible conceptually for corporations to exercise religion full stop.  Surely it is.  The interesting question is also clearly not whether religious exercise is “a purely personal matter”; it isn’t, and in any case, one wonders why the court is qualified to opine on that sort of issue.  The interesting question, I thought, has to do with how we can know, when a corporation is very large and diffuse, or is owned by many people with different religious beliefs, what the corporation’s religious beliefs are.

The case is Hobby Lobby Stores, Inc. v. Sebelius.  Lawyers for the plaintiff have said that they will appeal.

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