Bench Memos

Breyer and Kagan’s One-Paragraph Dissent

While digesting the implications of today’s very welcome ruling in Burwell v. Hobby Lobby Stores, I’ll note one interesting facet of the case that bodes well for the future of religious freedom, and of freedom generally.  In their one-paragraph dissent, Justices Breyer and Kagan say this (and this is their opinion in its entirety):

We agree with JUSTICE GINSBURG that the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits. We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993. Accordingly, we join all but Part III–C–1 of JUSTICE GINSBURG’s dissenting opinion.

Part III-C-1 of Justice Ginsburg’s opinion, concerning the rights of for-profit corporations, runs from page 13 to page 20 of her 35-page opinion, or about 20% of it.  There is no section of her opinion that is longer than this one.  Announcing that they do not join this part is the only reason for Breyer and Kagan to write separately.  They express neither disagreement nor agreement with the contrary conclusion of the Court that such corporations are protected under RFRA.  But it is very, very good news that there are only two justices on the Court–only Ginsburg and Sotomayor–who are willing to make the transparently bad argument that when you go into business for a profit under the corporate form, you lose your religious freedom under the law.


Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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