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Bench Memos

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Gaming the Courts Against Religious Liberty?



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In cases across the country, various individuals and the family-owned corporations they operate are invoking their religious-liberty rights not to comply with the Obama administration’s HHS mandate on contraceptives (including abortifacients). A leading argument that the Obama administration is making is that “for-profit, secular companies,” unlike “non-profit, religious organizations,” are categorically incapable of engaging in an exercise of religion within the meaning of the federal Religious Freedom Restoration Act and thus have no rights under RFRA. And the Obama administration uses the adjectives “for-profit” and “secular” redundantly: It maintains that every “for-profit” corporation is ipso facto “secular.” (I’m drawing here from DOJ’s Tenth Circuit brief in the Hobby Lobby case, pp. 11-12.)

The Obama administration’s argument can’t withstand scrutiny. For starters, RFRA itself makes no distinction between “for-profit, secular companies” and “non-profit, religious organizations.” On the contrary, its protections extend generally to “persons”—a term that under federal law includes corporations (“unless the context indicates otherwise”). Further, it ought to be obvious that for-profit companies can and do engage in, or abstain from, activity in a way that amounts to an exercise of religion. Take, for example, an incorporated Jewish deli that closes on the Sabbath and that serves only kosher food. (For yet further refutations of the argument, see this post of mine from mid-March.)

It turns out that, in a case that exposes the folly of its position, the Obama administration is afraid to defend its categorical proposition that a for-profit corporation has no religious-liberty rights under RFRA. That surely is why it moved to voluntarily dismiss its appeal of the preliminary injunction that a federal district court granted to Tyndale House Publishers, a for-profit corporation that publishes Bibles and other religious books. The D.C. Circuit granted its motion to dismiss last Friday.



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