In these cases, the plaintiffs allege violations of the First Amendment to
the U.S. Constitution, but the claims receiving the most attention are those
brought under the Religious Freedom Restoration Act of 1993 (RFRA).
RFRA provides that the “[g]overnment shall not substantially burden a person’s exercise of religion” unless the burden “( 1) is in furtherance of a
compelling governmental interest; and ( 2) is the least restrictive means of
furthering that compelling governmental interest.”
53 In adjudicating the
RFRA claims, courts focus on four questions: ( 1) whether corporations can
assert RFRA claims; ( 2) whether the contraceptive coverage provision substantially burdens the plaintiffs’ exercise of religion; ( 3) whether it furthers
a compelling government interest; and ( 4) whether it is the least restrictive
means of furthering that interest.
1. For-Profit Corporation Challenges
In a 5-4 decision, the Court held that RFRA allows closely held corpora-
tions to exclude coverage of contraception.
55 As a threshold matter, the
Court concluded that closely held for-profit corporations are persons within
the meaning of RFRA.
56 RFRA makes no mention of for-profit corpora-
tions, and does not define “person.”
57 The Court thus turned to the Diction-
ary Act, which states that a “person . . . include[s] corporations, companies,
associations, firms, partnerships, societies, and joint stock companies, as
well as individuals” “unless the context indicates otherwise.”
58 The Court
concluded that the context did not justify any other interpretation of “per-
son,” finding unpersuasive the government’s argument that for-profit corpo-
rations exist primarily to make money and cannot exercise religion.
cording to the majority, because for-profit corporations can pursue “worthy
objectives” like “costly pollution-control and energy conservation
measures,” there is no reason they cannot also exercise religion.
ing appeal to the Tenth Circuit); Wheaton Coll. v. Burwell, No. 13-A-1284, 1-2 (U.S. July 3,
2014) (granting injunction pending appeal permitting appellants to refuse to complete self-certification form and instead send letter directly to HHS).
52. Free Exercise of Religion Protected Act, 42 U.S. C. A. § 2000bb- 4 (West,
WestlawNext through Pub. L. No. 113-93 (excluding Pub. L. No. 113-79) approved Apr. 1,
53. § 2000bb- 1(a)-(b). Although the Supreme Court has held that the RFRA does not
apply to the state regulation through the Fourteenth Amendment, see City of Boerne v. Flores, 521 U.S. 507 (1997), the RFRA continues to apply to the federal government. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).
54. See, e.g., Hobby Lobby Stores, Inc., 2014 WL 2921709, at 1.
55. Id. 19.
56. Id. at 13-14.
57. Id. at 14.
58. Id. at 15-16.
59. Id. at 15.
60. Id. at 18.