July 16, 2014
What Hobby Lobby Didn't Decide
Posted by Ronald Colombo

First off, thank you to Usha and everyone at the Glom for inviting me back to participate in this symposium.  I thoroughly enjoyed Round 1, and have eagerly awaited this sequel!

Before commenting upon what the opinion did decide, I thought I'd clear the brush a bit and comment upon what the opinion didn't decide.  Especially because what the opinion didn't decide has been my own particularly scholarly focus for the last few years.

Namely:  do publicly traded business corporations have First Amendment free exercise rights (akin to the First Amendment free speech rights that they possess)?  The Supreme Court expressly decided to sidestep that particular issue (which is not surprising).

That said, the issue remains very much alive.  In its decision, the court held 5-2 that business corporations were persons capable of exercising religion as per the Religious Freedom Restoration Act (RFRA).  More than anythng else, RFRA addresses the standard pursuant to which religious liberty claims are to be adjudicated - not the definition of what constitutes the free exercise of religion.  Therefore, it stands to reason that there are at least 5 justices on the Court who believe that corporations have standing to bring free exercise claims directly under the First Amendment.  In light of the Smith decision, they'd most likely lose these cases if dealing with a law of general applicability, but they'd nevertheless have standing to bring them.

The issue is salient for at least two reasons: (1) Congress could curtail RFRA to reverse Hobby Lobby (and a movement among Democrats to do this is currently afoot), and (2) Hobby Lobby would not apply to similar claims brought against state-decreed (versus federally decreed) mandates.

With regard to the distinction between privately held versus publicly traded corporations, the Court in Hobby Lobby made clear that the decision was limited to the facts before them, thereby limited to privately held corporations.  Nevertheless, the Court was a bit cagey about this, observing at one point that "it seems unlikely that ... corporate giants ... will often assert RFRA claims."  The Court could have more firmly closed this particular door, but instead left it wide open.

Finally, the Court continued to avoid any sustained discussion of corporate theory, and how that might impact its recognition (or non-recognition) of corporate constitutional rights.  Again, that's not at all surprising.  Perhaps their waiting for one of us to pull their decisions together as part of some grand, over-arching theory!

I look forward to addressing the merits and implications of what Hobby Lobby did decide in the posts ahead, and to reading what others here have to say about the case.

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