Hofstra Law Hobby Lobby Panel

By: Michael Engle

On Monday, March 24, 2014, an all-star panel of Hofstra Law faculty members assembled for a panel discussion about the forthcoming Hobby Lobby oral arguments and decision.  Professor Robin Charlow, Professor Daniel Greenwood, Dean Ronald Colombo, and Professor Grant Hayden all lent their respective expertises and insights, drawing from fundamental constitutional law, corporate law, and labor law.  Highlights of the panel discussion are below:


Professor Robin Charlow

  • It is a “perpetually unresolved issue” as to a proper balance between government action and the free exercise of religion.  In fact, the upcoming oral arguments are a combination of Sebelius v. Hobby Lobby Stores, where the 10th Circuit granted personhood to a for-profit corporation, and Conestoga Wood Specialties Corp. v. Sebelius, where the 3rd Circuit declined to grant personhood to a for-profit corporation.  If the corporation is a person in this scenario, then the corporations will be able to withhold contraception from employees, by virtue of it being antithetical to the corporation’s Christian values.

  • As is, the Affordable Care Act (“ACA”) generally mandates that employer corporations provide health insurance to employees.  Small companies with fewer than fifty employees are exempted from this provision, and certain companies that had already provided non-ACA-compliant healthcare plans were afforded a transitional period by which the plans must be ACA-compliant.

  • The ACA also generally mandates that insurance plans must cover preventive services at no additional cost to employees.  It is unacceptable to shift these particular costs to employees, because women of childbearing age would incur substantially higher costs.  Among these “preventive services” are approximately twenty different FDA-approved forms of contraception, four of which interfere with the implanting of a fertilized egg in a woman’s uterus.  From this law, “religious employers” (which was initially understood to be limited to churches themselves) were exempt, while church-based charities and non-profit organizations were afforded an accommodation.  In this framework, whereby they would not directly have to pay for the contraception or make a necessary referral, employees would still be able to obtain contraception at no charge to them.

  • At issue is whether the government’s action are permissible via the Free Exercise Clause (only with respect to the Conestoga case) and the Religious Freedom Restoration Act (both cases).  In other words, is a for-profit corporation able to assert personhood?

    • With respect to the Free Exercise Clause:

      • Conestoga will assert that since the ACA provisions have many built-in exceptions, the laws cannot be considered to be neutral or of general applicability.

      • The federal government will assert that since for-profit corporations are not people, the government can restrict corporations’ behaviors without impinging on the free exercise of people’s religions.

    • With respect to RFRA (which Prof. Charlow anticipates to be the more likely source of law in the decision):

      • Corporations will assert that the government is forced to articulate a compelling interest, in order to be able to burden a person’s free exercise of religion.  If the ACA laws provide for so many exceptions, then it should be impossible for the government to legitimately assert that comprehensive health care is a compelling State interest.

      • The federal government will first assert that corporations should not be considered people in this scenario, that equality for women (by having access to contraception that they would use) is substantial, and that because corporations will not use contraception–employees will use them instead–the employer should not be found to be substantially burdened.


Professor Daniel Greenwood gave an impassioned policy argument rooted in corporate law.  At the core of corporate law, shareholders are not allowed to appropriate company funds.  Furthermore, insurance is a form of compensation, because it is assumed that workers were willing to accept health insurance as a portion of salary, in addition to their wages.  Essentially, a pro-Hobby Lobby decision would enable “a re-emergence of feudalism” in which corporations could compel workers to follow the corporation’s religion, as well as allow religious companies to be exempt from corporate law.  Shareholders would then be able to appropriate company money, by willfully offer a more expensive and less comprehensive health plan–while barring employees from being able to access free contraception–in what would otherwise be a clear violation of the law.


Dean Ronald Colombo, providing what turned out to be the contrarian point of view on the panel, intellectually sees no constitutional basis not to “connect the dots” and rule in favor of the corporations.  Corporations have been granted a right to contract via Dartmouth College v. Woodward (1819) and a right to similar 14th Amendment due process as a person would be afforded via Santa Clara County v. Southern Pacific Railroad (1886).  After SCOTUS further extended corporations’ right to 1st Amendment free speech via Citizens United v. Federal Election Commission (2010), Dean Colombo sees no reason why the court should disallow corporations from adopting 1st Amendment freedom of religion.

As Dean Colombo reasoned, churches, synagogues, and mosques most assuredly have religion, and they are organized as corporations.  Since incorporated non-profits like churches have free exercise rights, and unincorporated for-profit sole proprietorships also have free exercise rights, Dean Colombo cannot fathom why incorporated for-profit businesses should not be treated similarly.  According to Dean Colombo, this would be more consistent with tradition and history: traditionally, field workers would work close to home and stop and pray when church bells rang, but the Industrial Revolution yielded an unnatural separation of church and state.  Dean Colombo opined that a decision in Hobby Lobby’s favor would allow people of faith to be able to work according to their same religious values that govern their lives otherwise.


Professor Grant Hayden, speaking from the perspective of labor law, thinks a verdict in Hobby Lobby’s favor would be problematic.  Title VII works to generally prohibit discrimination on the basis of religion.  “Ministerial exceptions” allow religious groups narrow exceptions to discriminate on religion, so that, for example, a Catholic school can be assured that any staff member who is allowed to lead mass or teach a religious class does, in fact, comport with the beliefs of the Catholic church.  According to Professor Hayden, a pro-Hobby Lobby decision would result in overly broad discrimination.  By withholding contraception, not only would Hobby Lobby be imposing the primary shareholders’ religion upon all the employees, but it would be allowed to foster a disparate impact upon female employees, because they would be barred from obtaining contraception.

Furthermore, on the basis of individual free exercise of religion (which the Hobby Lobby owners hope to reflect through the corporation), Professor Hayden mentioned the Court’s low threshold on “undue hardship.”  Whereas a worker might choose to spread gospel on his employer’s campus without interference upon his free exercise of religion rights, another worker is equally entitled to be free from religious harassment.  In these cases, even an episode such as this one would qualify as an “undue hardship.”  Normally, an employer has to provide for a reasonable accommodation in employees’ free exercise of religion, but if the employer had to allow this proselytizer a forum on company property to impose his religion upon the other employees on company time, that would be an undue hardship.  Accordingly, employers would not have to accommodate this proselytizer.

As a final point, Professor Hayden postulated that a pro-Hobby Lobby decision would be deleterious upon society.  Whereas neighborhoods still tend to show discrimination, and whereas churches are “some of the most segregated, homogeneous populations you’ll ever see,” the workplace remains one of the few places where sexes, races, and religions are co-mingle.  Professor Hayden expressed concern that if corporations were to have official religions, this would undermine diversity and sabotage mutual understanding through heterogeneous interaction.  In addition, Professor Hayden reasoned that it would be unreasonably hard for a worker to not only have to find an employer in his region to hire him/her, but also to have to find a hiring employer that shares the candidate’s values.




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