by Celia Garrett*

In Burwell v. Hobby Lobby, the Supreme Court allowed closely held for-profit corporations to claim religious exemptions from the Patient Protection and Affordable Care Act contraception mandate, allowing these companies to omit certain contraceptive methods from their employer-provided health insurance plans. In downplaying the personhood controversy and the degree of the Court’s departure from established legal principles in its opinion, the majority conceals the extent of the debate and disagreement over this issue—and the extent of legal arguments and precedent to the contrary, as diligently explained in the amicus briefs supporting the government. This Contribution serves to revive and emphasize that discussion, as well as add to the ongoing debate on corporate personhood and human rights.

In Burwell v. Hobby Lobby, the Supreme Court considered a challenge to the Department of Health and Human Services’ (“HHS”) regulations, promulgated under the Patient Protection and Affordable Care Act of 2010 (“ACA”), requiring employers to provide preventive healthcare coverage for employees.1 Families owning two closely held for-profit corporations, Hobby Lobby and Conestoga, successfully argued that the mandated inclusion of certain contraceptive methods in employer-provided health insurance plans infringed on the free exercise of religion and therefore violated the Religious Freedom Restoration Act (“RFRA”).2 Contrary to the majority’s ruling,3 Hobby Lobby and Conestoga are not persons within the meaning of the RFRA and the contraception mandate does not substantially burden the corporation’s exercise of religion. The RFRA says that the government cannot “substantially burden a person’s exercise of religion.”4 The HHS preventive care regulations do not violate the RFRA mandate for two reasons: First, closely held corporations cannot be “persons” who practice religion; and second, even if the corporation is a “person” whose religious exercise the RFRA protects, then it follows that in evaluating whether the mandate constitutes a substantial burden, we must consider the burden on Hobby Lobby as a corporate entity. As described below, Hobby Lobby’s interest as a corporate entity is financial and therefore not sufficient to constitute a “substantial” burden under the RFRA.5

First, the definition of “persons” for purposes of the RFRA should be interpreted according to its particular use in the statute. For-profit corporations do not qualify as “persons” as used in the RFRA. The majority opinion boldly states that “no conceivable definition of the term [person] includes natural persons and nonprofit corporations, but not for-profit corporations.”6 Instead, the opinion finds that the Dictionary Act “provides a quick, clear, and affirmative answer” to whether the corporate plaintiffs may bring free-exercise claims under the RFRA.7 However, the Dictionary Act only controls where “context” does not indicate otherwise.8 And indeed, considering the use of “person’’ in the context of the RFRA, corporations cannot be included.

The Court’s holding—that a for-profit corporation constitutes a “person” able to “exercise” religion and have a right to religious freedom—marks a landmark and controversial departure from principles of corporate law without sufficient acknowledgement of the controversial nature of that decision.9 One of the most foundational principles of corporate law dictates that a corporation is an artificial and separate legal entity. By incorporating, the business assumes interests and a legal identity that are distinct from its owners and shareholders.10 By choosing to incorporate, and thereby reap the associated benefits under federal and state law, a business must also assume the duties and obligations attached to their chosen corporate form, including compliance with federal regulations, as upheld and reinforced consistently by the Supreme Court.11 Owners may not enjoy the benefits of incorporation and limited liability, yet simultaneously choose to ignore the confines of incorporation when it serves their interests. They cannot have it both ways.12

Indeed, neither the United Kingdom nor Canada—where corporate law evolved from the same Blackstonian doctrine of limited liability—grant corporations such an expansive definition of personhood as to endow them with free-exercise rights. In fact, several Justices on Canada’s Supreme Court have denied the ability of corporations to hold or express religious beliefs.13

However, even if the closely held corporations, Hobby Lobby and Conestoga, do qualify as “persons” within the meaning of the RFRA, neither corporation can show that the contraception mandate substantially burdened its exercise of religion. To find that the contraception mandate violates the RFRA’s protections, the corporation must demonstrate that the mandate substantially burdened its exercise of religion.14  On this issue, the Court agreed with Hobby Lobby, finding that the mandate “demand[ed] [that the Hahn and Green families] engage in conduct that seriously violates their religious beliefs”; more specifically, their “belief that life begins at conception.”15 However, no such substantial burden exists because (i) the personal or religious beliefs of the owners or executive cannot be attributed to the corporate entity and (ii) the corporation cannot hold religious beliefs or exercise any religion.

The majority does not clarify or question whether the corporate entity can have religious beliefs or whether the beliefs of the Hahn and Green families can be attributed to the corporation. Instead, the majority asks whether the contraception mandate “imposes a substantial burden on the ability of objecting parties to conduct business in accordance with their religious beliefs” and proceeds to discuss the “religious beliefs” or “religious reasons” of “the Hahns and Greens and their companies.”16 As a result, the majority has “little trouble” concluding that the contraception mandate imposes a substantial burden on “the exercise of religion.”17

However, this is not the question presented by the RFRA. If the corporation is the “person” identified in the statute, as the majority claims, then according to that language, the contraception mandate must burden that person’s exercise of religion. The corporate entity is not interchangeable with the owner or majority shareholder. Indeed, this rule underlies the entire principle of limited liability that helps define a corporation in the first place.18 That the corporate form shields an individual owner or shareholder from personal liability is an essential principle of corporate law and the natural consequence of corporations being separate and artificial legal entities.19

In looking to the mandate’s imposition on the Hahn and Green families and its “demand” that they “engage in conduct that seriously violates their religious beliefs,” the majority ignores this separation.20 The legal structure of a corporation, as underscored by the principle of limited liability, prevents Hobby Lobby as a corporate entity from assuming the religious beliefs of its owners. The Green and Hahn families made a choice about how to run their business; by deciding that the benefits of incorporation outweighed the limits imposed by this corporate form, they voluntarily gave up the right to assert their religious beliefs on behalf of the corporation.

Therefore, the religious beliefs of an individual cannot be attributed to the corporate entity.21 As a result of the longstanding separation between owners and the corporate entity—and the corresponding seclusion of the owners’ rights and duties from those of the corporation—the Court may not impute a business owners’ religious beliefs to the corporate entity.22 Individuals, when acting in their official capacity as corporate agents, “cannot . . . exercis[e] their personal rights and duties nor [are they] entitled to their purely personal privileges.”23 Instead, they “assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers.”24 Just as corporate officers have no privilege against self-incrimination when acting “in their official capacity,” because such a privilege is a “purely personal” right, the corporate plaintiffs here have no privilege of religious freedom.25 In providing healthcare coverage to their employees, the Hahn and Green family members act in their official capacity. As a result, they may not invoke their personal religious beliefs.

Moreover, as artificial legal entities, a corporation itself cannot exercise religion. The law does not accord corporations the same rights and privileges as natural persons. While corporations do qualify as legal persons entitled to certain constitutional protections, as an artificial entity, they do not enjoy the same innate characteristics of natural persons that enable them to believe in and practice a religion.26 In Hobby Lobby, the Court found that the contraception mandate created a burden on free exercise because it conflicted with the belief that life begins at conception.27 However, a corporation cannot experience the personal or human emotions required to hold this belief.28 Like the principle of limited liability, this distinction dates back centuries.29 The Court has distinguished between “human concerns” and those “associated with” a corporate entity and, as a result, denied certain rights to corporations when the enjoyment of those rights conflicts with the artificial nature of a corporation.30 A corporate entity that lacks the attributes of human dignity necessary to assert a privilege against self-incrimination must therefore also lack the “human” or dignitary traits required to believe in and practice religion.31 The Court has not endowed artificial entities with the right or ability to exercise human dignity, and should not depart from this tradition by finding that a corporation—even one closely held and owned by a single family like Hobby Lobby—can practice religion or enjoy the right to religious freedom.32

Justice Ginsburg provides several additional and compelling reasons why for-profit corporations cannot exercise religion and why the Court has never held nor suggested they can.33 The majority’s need to consider the families’ religious beliefs and its inability to evaluate corporate actions amounting to an exercise of religion provides further evidence that a corporation cannot exercise religion.

The appropriate analysis must evaluate how the mandate burdens the corporation. Given that the corporation’s burden amounts to a tax,34 its burden is not substantial enough to allow it to infringe upon the fundamental and constitutionally protected right to contraception.35 The corporation’s interest can be reduced to a financial one.36 Regardless of the exact economic consequence of Hobby Lobby’s decision, it does not amount to a substantial burden because the Court has established that mere payment of a fee does not constitute a substantial burden on the exercise of religion.37

In granting personhood status and the requested religious exemptions, Justice Alito states that to hold otherwise would force companies to make a “difficult choice” to either “give up the right to seek judicial protection of their religious liberty or forgo the benefit, available to their competitors, of operating as corporations.”38 However, running a billion-dollar company like Hobby Lobby inherently requires difficult choices. It is not the responsibility of the Supreme Court to ease the difficulty of business decisions that owners or executives may face.39 It is the responsibility of the Court to protect fundamental constitutional rights like the right to contraception. The Court in Hobby Lobby protects the former at the expense of the latter, not only denying access to contraception but also setting a dangerous precedent about the power of corporations relative to individuals’ reproductive rights and third-party interests.

If Hobby Lobby and Conestoga choose to incorporate and thus enjoy the privileges and benefits of incorporation—namely, of limited liability and other protections grounded in the corporation’s status as a separate and artificial legal entity— they give up certain personal rights in doing so, including the right to claim complete First Amendment religious freedom protection. Given that Hobby Lobby was wrongly decided for the above reasons, courts should read this decision narrowly and limit its impact to the facts of this case.

* Celia Garrett is a J.D. Candidate (2024) at New York University School of Law. This Contribution arose from a paper for a course entitled Reproductive Rights and Justice: A Comparative Perspective taught by Professor Chao-ju Chen.

1. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688 (2014).

2. Id. at 703–04.

3. Id. at 706–07, 719–20 (finding (i) the RFRA applies to closely held for-profit corporations because corporations qualify as “persons” under the RFRA and (ii) the contraception mandate burdens Hobby Lobby’s and Conestoga’s exercises of religion).

4. 42 U.S.C. § 2000bb-1(a).

5. The following analysis applies equally to closely held and publicly traded corporations. The majority posits that “no known understanding of the term ‘person’ includes some but not all corporations.” Hobby Lobby, 573 U.S. at 708. The majority purports to limit its decision on the basis that “the companies in the cases before us are closely held corporations,” and it “seems unlikely” that large, publicly traded corporations would assert RFRA rights (citing “practical restraints” in doing so). Id. at 717. Whether or not the majority is correct that practical restraints will prevent a public corporation from asserting these rights, the majority does exactly what it claims cannot be done: it interprets “person” to apply to some, but not all, corporations. Either the majority contradicts itself in limiting its holding to closely held corporations, or its decision must be read to ascribe religious exemptions to all for-profit corporations. However, regardless of whether the corporation is closely held or publicly traded, the essential characteristics of limited liability do not differ between the two types of corporations.

6. Hobby Lobby, 573 U.S. at 708.

7. Id. at 684, 707–08.

8. Id. at 707 (citing 1 U.S.C. § 1).

9. The back and forth at the Court during oral argument, and the almost ninety amicus briefs filed before the Court, highlight the departure from foundational principles of corporate law. For example, courts have narrowly interpreted the exemption in Title VII of the Civil Rights Act permitting religious employers to favor their co-adherents in limited circumstances and limited its application only to churches and faith-based nonprofits. In contrast, Hobby Lobby takes the “unprecedented step” of exempting corporations—“in the name of the religious liberty of shareholders”—from compliance. Elizabeth Pollman, Corporate Law and Theory in Hobby Lobby, in The Rise of Corporate Religious Liberty 149, 170 (Micah Schwartzman et al. eds., 2016).

10. See e.g., United States v. Bestfoods, 524 U.S. 51, 61 (1998) (calling this “a general principle of corporate law deeply ‘ingrained in our economic and legal systems’”); see also Amicus Curiae Brief of Corporate and Criminal Law Professors in Support of Petitioners at 6–8, Hobby Lobby, 573 U.S. 682 (Nos. 13-354, 13-356), 2014 WL 333889, at *6–8 (citing William W. Cook, The Principles of Corporation Law 19 (1925) (first describing this “privilege of limited liability . . . [as] the corporation’s most precious characteristic” and noting that “allowing a corporation . . . to take on and assert the religious beliefs of its shareholders . . . is fundamentally at odds with the entire concept of incorporation”).

11. See e.g., Schenley Distillers Corp. v. United States, 326 U.S. 432, 437 (1946) (“One who has created a corporate arrangement, chosen as a means of carrying out his business purposes, does not have the choice of disregarding the corporate entity in order to avoid the obligations which the statute lays upon it for the protection of the public.”); see also Domino’s Pizza, Inc. v. McDonald, 456 U.S. 470, 477 (2006) (rejecting a racial discrimination claim brought by a corporation’s sole minority shareholder because the alleged injury was suffered only by corporation and upholding the “fundamental” separation between the owner, who “is exposed to no liability under the corporation’s contracts,” and “the corporate form . . . [that] similarly den[ies] him rights under those contracts”).

12. Brief of the Brennan Center for Justice at N.Y.U. School of Law as Amicus Curiae in Support of the Government at 14, Hobby Lobby, 573 U.S. 682 (Nos. 13-354, 13-356), 2014 WL 334440, at *14 (arguing that “[h]aving derived substantial economic benefits” from the legal and abstract separation that follows incorporation, “religious shareholders such as the challengers may not elect to ignore the legal construct when it suits their personal preference”); Tate Access Floors, Inc. and Another v. Boswell and Others, [1990] 3 All ER 303, 315 (enforcing the separation of the corporate entity and its owners, finding those who conduct their affairs “through the medium of corporations” take “advantage of the fact that in law those corporations are separate legal entities” and that anyone who “control[s]” the company “cannot, for all purposes beneficial to them, insist on the separate identity of such corporations but then be heard to say the contrary” when it ceases to advantage them).

13. See e.g., R v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, para. 153 (Can.) (expressing “no hesitation in remarking that a business corporation cannot possess religious beliefs”); Wallace Rozefort, Are Corporations Entitled to Freedom of Religion under the Canadian Charter of Rights and Freedoms, 15 Manitoba L. J. 199, 209, 212 (1986) (citing Syndics de St-Paul de Montréal (Paroisse) v. Cie des Terrains de la Banlieue de Montréal, [1905] 28 C.S. 493) (finding that a corporation as a legal “fiction” cannot be Catholic because it does not have the spirit of personhood and cannot believe in a religion or “dogmas”); Section 2(a) – Freedom of Religion, Charterpedia, https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2a.html#shr-pg0 (current through July 31, 2022), in Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (U.K.) (citing Loyola High School v. Quebec (Attorney General), [2015] 1 S.C.R. 613, para. 99–100 (Can.) (minority opinion)) (finding religious organizations—and not corporations writ large—hold religious freedom rights) (the majority finding it unnecessary to decide whether corporations can claim religious freedom); see also Quebec (AG) v. 9147-0732 Québec Inc. [2020] 3 S.C.R. 426, 427 (Can.) (denying the application of the Canadian Charter’s protection against cruel and unusual punishment to corporations on the grounds that the provision was meant to protect against human dignity, a notion meant exclusively for and therefore limiting the provision to human beings).

14. 42 U.S.C. § 2000bb-1(a).

15. Hobby Lobby, 573 U.S. at 720.

16. Id. at 724.

17. Id. at 719.

18. As a “bedrock” principle of corporate law, this legal separation is strictly followed by the courts and the Supreme Court has “consistently interpreted federal statutes” to be consistent with this norm. Brief for the Petitioners at 23–24, Hobby Lobby, 573 U.S. 682 (No. 13-354), 2014 WL 173486, at *23–24; see also Brief of California et al. as Amici Curiae Supporting Federal Petitioners and Respondents Kathleen Sebelius et al. at 6–7, Hobby Lobby, 573 U.S. 682 (Nos. 13-354, 13-356), 2014 WL 333896, at *6–7 (arguing that the “RFRA must be construed in light of other law existing at the time of its enactment,” specifically, “well settled and widely understood” background principles of state law that the Supreme Court “assumes Congress does not intend to displace absent some clear indication to the contrary”).

19. See e.g., Brief of Corporate and Criminal Law Professors, supra note 10, at 4–5 (noting this principle is “well-established,” the “very basis of corporate law” for centuries, and that the Supreme Court itself has observed this separation is “a general principle of corporate law deeply ingrained in our economic and legal systems”).

20. Hobby Lobby, 573 U.S. at 720.

21. Braswell v. United States, 487 U.S. 99, 118 (1988) (holding that when a corporate executive acts in their “representative rather than personal capacity, . . . the act is deemed one of the corporation and not the individual”); see also Quebec (AG) v. 9147-0732 Québec Inc., [2020] 3 S.C.R. 426, 427 (Can.) (emphasis added) (finding “the existence of human beings behind the corporate veil insufficient to ground a [] claim of right” rooted in human dignity—that is, the right to be free from cruel and unusual punishment—when brought “on behalf of a corporate entity, in light of the corporation’s separate legal personality”); see also Brief of Corporate and Criminal Law Professors, supra note 10, at 4 (citing J. Holmes in Donnell v. Herring-Hall-Marvin Safe Co., 208 U.S. 267, 273 (1908)) (“A leading purpose of [corporation] statutes and of those who act under them is to . . . [make it] impossible to see the men behind them.”); see also Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001) (finding the purpose of incorporation is to operate a distinct legal entity, where the “legal rights, obligations, powers, and privileges differ[] from those of the natural individuals who created it, who own it, or whom it employs”).

22. This goes to the core of the limited liability principle. See also Howard Kislowicz, Business Corporations as Religious Freedom Claimants in Canada, 51 Revue juridique Thémis de l’Université de Montréal 337, 348–49 (2017) (citing Syndics de St-Paul de Montréal (Paroisse) v. Cie des Terrains de la Banlieue de Montréal, [1905] 28 C.S. 493 (Can.)) (holding that a corporation has a distinct existence from its shareholders or managers and that their religion therefore cannot be imbued to the corporation), aff’d Pollack v. Comité Paritaire du Commerce de Détail à Québec, [1946] S.C.R. 343, 347 (Can.) (noting a religious corporation can neither profess nor belong to a religion); see also Quebec (AG) v. 9147-0732 Québec Inc., [2020] 3 S.C.R 426, para. 129 (Can.) (holding that the corporation’s separate legal personality reinforces that “the individuals within the corporation are not the subject of any treatment [] imposed on the corporate entity”).

23. Brief for California et al., supra note 18, at 14 (citing Bellis v. United States, 417 U.S. 85, 90 (1974)).

24. United States v. White, 322 U.S. 694, 699 (1944); see also Braswell, 487 U.S. at 109–10 (differentiating between a “personal act” and “an act of the corporation”).

25. White, 322 U.S. at 699.

26. See cases cited supra note 13.

27. Hobby Lobby, 573 U.S. at 720.

28. See id. at 752 (Ginsburg, J., dissenting) (“[T]he exercise of religion is characteristic of natural persons, not artificial legal entities.”).

29. Tara Helfman, Transatlantic Influences on American Corporate Jurisprudence: Theorizing the Corporation in the United States, 23 Indiana J. of Glob. Legal Stud. 383, 394 n.43 (2016) (citing Case of Sutton’s Hospital (1612) 77 Eng. Rep. 960, 973) (saying that corporations “have no souls,” but rather, are “invisible, immortal” entities; they cannot swear loyalty nor pledge fealty).

30. FCC v. AT&T, Inc., 562 U.S. 397, 406 (2011) (finding personal privacy protections do not extend to corporations); see also Hale v. Henkel, 201 U.S. 43, 74 (1906) (distinguishing between natural persons and corporations by limiting the Fifth Amendment rights of “persons” to natural persons and defining the corporation instead as a “creature of the State” with “powers [] limited by the law”), rev’d on other grounds by Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52 (1964); Braswell, 487 U.S. at 104 (denying the privilege against self-incrimination to artificial corporate entities by finding that the Court has a “lengthy and distinguished pedigree” of treating corporations differently from individuals); United States v. Morton Salt Co., 338 U.S. 632, 651–52 (1950) (declining to grant corporations full Fourth Amendment privacy rights and saying that “corporations can claim no equality with individuals in the enjoyment of a right to privacy”); White, 322 U.S at 698–99 (holding the Fifth Amendment right against self-incrimination applies only to individuals and not to corporations).

31. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012) (“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.”); see also Hale, 201 U.S. at 75 (refusing to award Fifth Amendment privilege against self-incrimination to a corporation because that protection is a personal privilege rooted in a respect for human dignity); Braswell, 487 U.S. at 105, 117–18 (reaffirming Hale, applying it to a single shareholder corporation and preventing the president and sole shareholder from invoking this right for actions taken in his “representative capacity”).

32. See, e.g., Brief of Constitutional Accountability Center as Amicus Curiae in Support of the Government at 4, 14–15, Hobby Lobby, 573 U.S. 682 (Nos. 13-354, 13-356), 2014 WL 343185, at *4, *14–15 (saying “the free exercise of religion . . . was intended to protect a basic right of human dignity and conscience, one of the ‘characteristic rights of freemen’” and providing evidence that the free exercise guarantee was understood in the founding era to be a purely personal right).

33. Hobby Lobby, 573 U.S. at 754 (citing the lack of case law support for extending free exercise rights to for-profit corporations, exploring the purpose and tradition of the legal distinction between corporations and religious or non-profit organizations, and focusing on the attenuated connection between the contraceptive mandate and families’ religious objections).

34. See Transcript of Oral Argument at 22, 25, Hobby Lobby, 573 U.S. 682 (No. 13-354) (J. Kagan) (the mandate is “not saying you must do something that violates your religion. It’s giving you a choice”—a choice between “a payment or a tax”).

35. Griswold v. Connecticut, 381 U.S. 479, 484–86 (1965); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); see also Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228, 2243 (2022) (distinguishing the rights to abortion and contraception, calling the abortion right “critically” and “fundamentally different”).

36. The corporation can either provide adequate healthcare coverage, minimal coverage that does not conform to the ACA’s requirements, or not provide health insurance to its employees at all. Brief for the Petitioners, supra note 18, at 8. The latter two options both involve payments to the government: Hobby Lobby can pay a $475 million tax for its failure to provide full contraceptive coverage as part of its healthcare package or make one yearly payment of $26 million if it chooses not to provide healthcare coverage entirely. Transcript of Oral Argument at 21–25, Hobby Lobby, 573 U.S. 682 (No. 13-354); see also Brief of Religious Organizations as Amici Curiae Supporting the Government at 22, Hobby Lobby, 573 U.S. 682 (Nos. 13-354, 13-356), 2014 WL 333898, at *22 (noting the $2,000/employee tax may be less than the average cost of providing health insurance). The majority agrees that Hobby Lobby and Conestoga could “avoid” the more severe economic consequence ($475 million penalty) by opting for their employees to obtain health insurance on the government exchanges. Hobby Lobby, 573 U.S. at 720.

37. See Braunfeld v. Brown, 366 U.S. 599, 605–06 (1961) (holding that a law making plaintiff’s business more expensive, including one that merely “operates [] to make practice of [religion] more expensive,” is not a sufficient reason to grant a religious exemption because it only imposes an “indirect burden on the exercise of religion”); Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 379 (1990) (denying a religiously based exemption from the payment of sales taxes because the imposition of a generally applicable tax does not constitute a significant burden).

38. Hobby Lobby, 573 U.S. at 706.

39. Denying religious exemptions to closely held corporations does not prevent those owners or executive from operating in accordance with their religious beliefs. Such an owner may continue operating their business according to their religious principles, for example as a sole proprietorship. Denying closely held corporations the ability to seek religious objections from compelling statutory requirements merely affects the package of rights and duties that comes with incorporation.