Arizona Law Review
The Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. has stirred strong objections from political liberals. Those objections are misguided, and the Court's opinion reflects core liberal values of social responsibility and tolerance of diversity. In the first half of its decision, the Court held that in some circumstances, for-profit corporations committed to religious goals may invoke the religious liberty protection of the Religious Freedom Restoration Act (RFRA). Liberals have treated this as an appalling and/or humorous extension of rights, which should apply only to humans. However, the Court's decision rightly recognizes that corporations can, and sometimes do, pursue goals other than shareholder profits. This fits well with the stress on corporate social responsibility one finds in progressive corporate law scholarship such as the Author's. Where religious beliefs shape a corporation's purposes, the protections of RFRA may rightly apply. This Article suggests a detailed framework for determining when particular corporations are engaged in the exercise of religion, looking to both organizational and ownership dimensions of commitment to religion. This framework clarifies the somewhat sketchy analysis of the Court and more firmly roots that analysis in corporate law and theory. In the second half of the opinion, the Court held that the contraceptive mandate of the Affordable Care Act substantially burdens the religious exercise of employers, and that the mandate is not the least restrictive means of achieving a compelling governmental objective. Liberals fear that this holding aggressively extends the protection of RFRA while undermining the compelling goal of the contraceptive mandate. In fact, the holding is quite nuanced and limited, and much liberal reaction reflects discomfort with RFRA itself. That is a shame, as creating a diverse society where persons and groups with differing beliefs are able to coexist is a core liberal commitment. Liberals may have lost sight of this commitment as the groups invoking RFRA's protection have shifted from social outcasts to more mainstream religious conservatives. That may explain, but does not justify, liberal opposition to Hobby Lobby.
Brett McDonnell, The Liberal Case for Hobby Lobby, 57 Ariz. L. Rev. 777 (2015), available at https://scholarship.law.umn.edu/faculty_articles/423.