Religious Liberty and Freedom of Conscience

Burwell v. Hobby Lobby Stores Inc. (2014)

  • May 24 2018

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Whether the Free Exercise Clause and the Establishment Clause prohibit the federal government from coercing business owners to provide health insurance that covers contraceptives in violation of their religious beliefs.


In 1993 Congress passed the Religious Freedom Restoration Act RFRA. The act prohibited the federal government from infringing on a person’s exercise of religion, even if the resulting burden was caused by a generally applicable law. The only exception to this rule was if the government had a compelling interest that outweighed a person’s religious beliefs. The Affordable Care Act ACA signed by President Obama in 2010 required employers to provide health care to their employees that covered preventative care to women. Such preventative care included what are commonly known as “morning after pills,” which prevent fertilized eggs from attaching to the uterus. Some religious denominations consider the consumption of these pills immoral.

Hobby Lobby Stores Inc. was a “closely held,” for-profit corporation owned by David Green and his family. The Greens were Evangelical Christians who believed that human life is sacred and begins at conception. For this reason, they believed that abortifacients such as the morning after pill cause the death of living human beings and are thus immoral. In 2012, in response to the ACA, Hobby Lobby dropped its health coverage and took the Obama administration to court, arguing that the required coverage of contraception was a violation of the First Amendment right to freedom of religion.

The Court Below

The United States District Court for the Western District of Oklahoma was the first to hear the case. The court ruled in favor of the Obama administration, stating that corporations are not considered “persons” under RFRA and do not have protected rights under the Free Exercise Clause. See opinion below:

Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278 W.D. Okla., 2012

Hobby Lobby appealed to the Tenth Circuit Court of Appeals, which reversed and ruled in favor of Hobby Lobby. See opinion below:

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 10th Cir., 2012

The Obama administration appealed to the Supreme Court, which consolidated the Hobby Lobby case with Conestoga Wood Specialties Corp. v. U.S. DHHS, 724 F.3d 377 3rd Cir., 2013. The Court upheld the decision of the 10th Circuit Court in favor of Hobby Lobby. See opinion below:

Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 2014

Question before the Court

“The Religious Freedom Restoration Act of 1993 RFRA, 42 U.S.C. 2000bb et seq., provides that the government ‘shall not substantially burden a person's exercise of religion’ unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1a and b. The question presented is whether RFRA allows a forprofit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation's owners.”

CCJ filed an amicus curiae in support of Hobby Lobby Stores, Inc.


Contrary to the government’s argument, Christianity is a communal way of life affecting every aspect of our lives. The practice of religion extends beyond private, individual activities. The right to free exercise of religion goes beyond the physical grounds of church property, for example. The Founders and this Court have understood it as such, and civil society has reflected this understanding throughout American history. Furthermore, this Court has recognized that corporations consist of people who are entitled to First Amendment protections. Those people who operate secular, for-profit companies, such as Hobby Lobby, Inc., thus maintain their right to the free exercise of religion when operating their businesses.

The Founders understood religion to extend beyond houses of worship. They encouraged group prayer and action outside of churches. President Washington proclaimed November 26, 1789, as a day of “public thanksgiving and prayer.” That same year Congress authorized paid chaplains to open legislative sessions. Similarly, state constitutions in the 1770s and 1780s guaranteed religious liberty in both the private and public sphere. The Founders acted in such a way because they understood that religion shapes the citizens’ entire ways of life.

The Supreme Court has upheld the Founders’ view of religion repeatedly. In 1952, the Court noted in Zorach v. Clauson, “We are a religious people whose institutions presuppose a Supreme Being.” For this reason, it has held that private organizations, including corporations, are protected by the First Amendment. In 2012 the Court held in Citizens United v. Federal Election Comm’n, “First Amendment protection extends to corporations.” Numerous for-profit companies such as Hobby Lobby have acted upon the religious convictions of their members throughout America’s history.

Furthermore, civil society has reflected the Founders’ view throughout American history. Business executives often come together to encourage one another in their faith under organizations such as The High Calling and the group Legatus. Since 1953, the president and members of Congress have partaken in a national prayer breakfast. Each president since Dwight Eisenhower has spoken about how his faith informs the way he carries out his duties. People of faith do not merely leave their faith at the worship-house door; they live their religion in their daily civic life. In requiring that corporations fund abortifacients, the Obama administration was attempting to establish a new interpretation of the Constitution declaring that individuals lose their religious liberty when they operate a “secular, for-profit” company.

The Founders understood that free exercise of religion meant restricting government from forcing individuals to violate their religious convictions. For example, Article VI of the Constitution reads that government officials “shall be bound by oath or affirmation, to support this Constitution.” They considered oaths to be religious in nature, a submission to the judgement of a Supreme Being after death. The word affirmation was included for the sake of the Quaker and Mennonite sects whose religious beliefs barred them from swearing oaths. This wording of the Constitution shows us the Founders’ intentions for the scope of religious liberty. Also, the Article VI prohibition on religious tests for office holders was included to avoid compelling citizens to violate their religious beliefs. These clauses inform the meaning of the First Amendment.

Historical practice at the time of the founding supports the interpretation that the Free Exercise Clause prohibits the government from forcing individuals to violate their religious convictions. The Quakers during the Revolutionary War could refuse military service because of their religious convictions. If ever there was “compelling government interest,” it would have been to enlist every able-bodied man to fight the British. Yet even in America’s darkest hour, George Washington permitted the Quakers to abstain from fighting. After the war, numerous states continued to protect against compulsion to violate religious beliefs. The founding generation understood that the First Amendment prohibits government from compelling citizens to violate their religious beliefs. They would have disapproved of the burdens the Obama administration placed on the religious liberty of organizations such as Hobby Lobby.

Final Outcome

The Supreme Court held, “As applied to closely held corporations, the [ACA] regulations imposing the contraceptive mandate violate RFRA.” In doing so they ruled in agreement with CCJ that corporations are protected as “persons” under the RFRA and are owed the protections established in the First Amendment. Furthermore, they agreed that the regulation compelled citizens such as the owners of Hobby Lobby to either violate their religious convictions or leave the market place.