SCOTUS roofWritten by Don Byrd

Writing for the National Constitution Center, Supreme Court reporter Lyle Deniston revisits the Court’s Hobby Lobby decision in light of the recent national debates over state religious freedom laws. In Hobby Lobby, you probably recall, the Court ruled in favor of two family-owned businesses challenging the contraception coverage requirement in the Affordable Care Act on the grounds that such a requirement violated their religious liberty rights under the federal Religious Freedom Restoration Act (RFRA). Deniston writes that much of this year’s debate misreads the Court’s holding.

Here is a snippet from his column, which is worth a read in its entirety:

[T]he court did not declare that corporations, in their own separate nature as legal entities, are capable of holding religious beliefs, and it certainly did not say that a corporation has a soul, in the religious sense. At critical points in the majority opinion, the court stressed that it was the religious beliefs of a corporation’s owners that were protected by the Act.

The two corporations involved in that case were each owned by just a few members of the same family, and it was those family members who managed the affairs of their business firm in order to express their religious views.   Allowing the corporations themselves to claim protection under the federal law, the court said, “protects the religious liberty of the Greens and the Hahns” – the families who own the two corporations, and do not share that ownership with anyone else, least of all public stockholders.

Deniston’s central point is well-taken and I agree: the debate over state RFRAs has been rife with hyperbole and fear-mongering on both sides, including overly broad interpretations of Hobby Lobby and its potential fallout. However, while his narrow reading of the ruling is attractive, it’s worth remembering that many of these questions remain unanswered. The Court declined to define “closely-held corporations,” and explicitly refrained from addressing the question of whether other types of corporations may somehow also bring claims to protect the religious beliefs of corporate owners. Some of those scenarios will remain open for speculation unless and until the Court finally closes them.

For more perspective, see columns by the BJC’s Brent Walker and Holly Hollman following the Hobby Lobby ruling.

In the meantime, legislators in various states are finding ways to answer those questions on the state level in the text of the bills themselves, rather than leaving it up to courts. There will be plenty of time in the weeks and months ahead to conduct post-mortems on this year’s state legislative sessions, which have seen enormous attention to religious liberty arguments in general and Religious Freedom Restoration Act (RFRA) bills in particular. I will be interested to see how many states at the end of the day wind up passing RFRA bills, and how closely those measures mirror the federal law that inspires them.

You can follow the progress of state RFRA proposals at my State RFRA Bill Tracker.