Can a corporation have a religion?: Hobby Lobby challenge to contraception mandate heads to Supreme Court

Justices will decide Tuesday whether to hear an appeal of a lower court's ruling affirming Hobby Lobby's "religion"

Published November 25, 2013 2:34PM (EST)

The owners of Hobby Lobby, a chain of crafts stores that plays religious music for shoppers, provides employees free "spiritual counseling" and closes down every Sunday, have been fighting tooth and nail to avoid providing their employees with the comprehensive reproductive healthcare required under the Obama Administration's healthcare reforms because, they argue, allowing women to determine if and and what kind of birth control to use is a violation of its religious beliefs.

As the New York Times notes, a federal appeals court agreed with Hobby Lobby on that issue, and now the Supreme Court on Tuesday will decide whether or not to hear the Obama administration’s appeal of that decision.

The majority opinion from the lower court's ruling stated with some confidence that the high court would likely affirm its decision. “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy M. Tymkovich wrote for the majority. Though a dissenting opinion in that same ruling called the decision “nothing short of a radical revision of First Amendment law.”

If the Supreme Court decides to hear the case, its final ruling will have major implications for the limits of corporate personhood and the "religious expression" of corporations, as well as for the administration's embattled healthcare law.

“The stakes here, symbolically and politically, are very high,” Douglas Laycock, a law professor at the University of Virginia, told the Times.

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Among Hobby Lobby’s lawyers is Paul D. Clement, who led the 2012 Supreme Court challenge to the health care law. The new case opened another front in a larger war on the law, which, as Hobby Lobby put it in its Supreme Court brief, “imposes massive obligations on individuals and corporations alike in the process of attempting to fundamentally reorder the nation’s health care system.”

Mr. Clement’s main adversary in the 2012 case, Solicitor General Donald B. Verrilli Jr.,told the justices that the 10th Circuit’s “unprecedented ruling” in this case would allow “for-profit corporations to deny employees the health coverage to which they are otherwise entitled by federal law, based on the religious objections of the individuals who own a controlling stake in the corporations.”


The administration has excluded many religious organizations from the law’s requirements; it has grandfathered some insurance plans that had not previously offered the coverage; and, under the health care law, small employers need not offer health coverage at all. In June, a federal judge in Tampa, Fla., estimated that a third of Americans are not subject to the requirement that their employers provide coverage for contraceptives.

But the administration drew a line at larger, for-profit, secular corporations.

“Congress has granted religious organizations alone the latitude to discriminate on the basis of religion in setting the terms and conditions of employment, including compensation,” the Justice Department told the 10th Circuit appeals court, in Denver.

“No court has ever found a for-profit company to be a religious organization for purposes of federal law,” the brief went on. “To the contrary, courts have emphasized that an entity’s for-profit status is an objective criterion that allows courts to distinguish a secular company from a potentially religious organization, without conducting an intrusive inquiry into the entity’s religious beliefs.”

By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

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Aca Birth Control Citizens United Contraception Hobby Lobby Scotus Supreme Court