Do individuals lose their religious freedom when they become successful entrepreneurs? That is the question before the U.S. Supreme Court on Tuesday, in the cases of Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

The owners of these businesses are personally religious and manage their businesses according to their religious principles. The Hahn family, owners of the Conestoga corporation, are devout Mennonite Christians who regard their work as an extension of their faith. The Green family, who own and manage Hobby Lobby, keep their stores closed on Sundays, direct the company to purchase advertisements urging readers “to know Jesus as Lord and Savior” and refuse to engage in any alcohol-related business.

Both companies object to one of the regulations devised by the Department of Health and Human Services to implement the Affordable Care Act — the requirement that they provide their employees with health insurance that covers every form of contraception approved for use by the Food and Drug Administration. The Hahns and the Greens do not object to most forms of birth control, and their employee health plans now provide contraceptive coverage.

But they believe that human life begins at conception, and they do not want to be forced to facilitate the use of any methods of contraception that may operate to prevent the implantation in the womb of fertilized eggs. As they see it, they do not want to facilitate the sinful killing of the youngest and most vulnerable of human beings. Failure to comply with the mandate would subject their companies to ruinous fines.

Although the Supreme Court formerly afforded strong protection to believers whose religious conduct was burdened by state or federal law, the court revised its position in 1990, when it held that the free exercise clause of the First Amendment protected believers only against measures that in effect targeted their religion.

By that standard, neither Hobby Lobby nor Conestoga would have a case to make, as the Health and Human Services regulations apply to everyone equally. But the 1990 decision proved hugely controversial, and in response, the Congress in 1993 enacted the Religious Freedom Restoration Act. That measure, which attracted overwhelming support from both parties and was signed into law by President Bill Clinton, created a new protection in federal law for religious freedom equivalent to the old protection that the Supreme Court had just rejected.


Under the Religious Freedom Restoration Act, the government may not “substantially burden a person’s exercise of religion” unless the government has a “compelling” reason to do so and the burden is part of the “least restrictive means” of accomplishing that compelling purpose.

The Obama administration argues that neither Hobby Lobby nor Conestoga can invoke the protection of the Religious Freedom Restoration Act because they are for-profit corporations, not individual human beings.

It is clear, though, that some groups organized as corporations can assert religious freedom claims. Churches and other religious congregations typically organize themselves as corporations, as do religious charities, and no one doubts that such corporate “persons” have religious freedom rights.

The court also has held that individuals engaged in for-profit business on their own may assert religious freedom claims in connection with their businesses.

Why, then, should more successful businesspeople, who adopt a corporate form to facilitate the operation of their growing businesses, be thought to lose their religious freedom rights?

Surely the Congress that enacted the Religious Freedom Restoration Act would not want to say that a successful kosher butcher who had incorporated his meat business was for that reason prevented from suing to protect his religious liberty against a law that mandated nonkosher slaughtering.


Note that neither Hobby Lobby nor Conestoga is arguing that every business can plausibly make religious freedom claims. Large, publicly traded companies have so many different owners that they rarely have any purpose other than making money. Only companies that can demonstrate a real unity of purpose and religious mission can successfully claim to be exercising religion.

The government insists, however, that Hobby Lobby and Conestoga are making a wholly new claim: there is no case (until these lawsuits) in which the federal courts had recognized for-profit companies as having religious liberty rights.

That is true, but that is because the Affordable Care Act’s system of mandates and its comprehensive micromanagement of health plans are themselves unprecedented.

The more the detailed the mandates the government imposes on us, the more conflicts will arise between the beliefs of conscientious individuals and the government, which is why, if we value freedom and diversity, we need to return to the ideals of limited government.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.

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