Hastings Constitutional Law Quarterly


Eric Rassbach


The Supreme Court in Burwell v. Hobby Lobby Stores held that the Religious Freedom Restoration Act applied to for-profit corporations and that the Affordable Care Act's requirement that group health care plans provide FDA-approved contraceptives created a substantial burden on Hobby Lobby Stores, Inc. Although controversial, this Article explains why the following outcry and dismay after the decision by media and scholars alike is unjustified. Hobby Lobby is merely a substantial burden case in a long line of substantial burden cases. The escalated level of attention to Hobby Lobby is not doctrinal, which is supported by the fact that it was litigated under the same substantial burden standard as other religious liberty cases. Given the political dimension behind contraceptive mandate cases and the themes of religion, sex, and corporations, there is a strong incentive for academics, media, and the government to hype the Hobby Lobby issue.

This Article argues that the predictions on effects of Hobby Lobby on for-profit religious claims has not and will not manifest. Media and scholars view Hobby Lobby as opening the door to more claims by corporations who will use religious concerns as a pretext to make additional profits. In the months following the decision, courts that apply Hobby Lobby have done so only in cases that have little to do with corporate overreaching or in jurisdictions that have long applied the same substantial burden test. Religious exercise claims by for-profit corporations will remain rare and pundits' fear of absurd claims brought by large corporations is ameliorated by the sincerity requirement on religious exercise claims. Time will tell what the actual effects of Hobby Lobby are, but in context of past cases, Hobby Lobby is simply one point in the continuum of substantial burden cases and nothing more.