28  As a sole proprietor, Lee was subject to personal liability for violating the law of general application he opposed. His claim to a religion-based exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability. 9  Under Sherbert and Yoder, the Court “requir[ed] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. 872, 894 (1990) (O’Connor, J., concurring in judgment).

The Bottom Line: No Publicly Traded Hobby Lobby Stock

But I am unpersuaded. Walmart, for example, is publicly traded. But a majority of its stock is owned by the Walton family, and they could impose their religious beliefs on the company with ease. Nothing in the logic of today’s opinion would limit the company’s ability to claim a Hobby Lobby waiver from, for example, state laws like those existing in Massachusetts and a number of other states requiring the company to not discriminate against LGBT employees.

Company

599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profession but the performance of (or abstention from) physical acts” that is hobby lobby publicly traded are “engaged in for religious reasons.” Smith, 494 U. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that “operates so as to make the practice of . Religious beliefs more expensive” in the context of business activities imposes a burden on the exercise of religion.

Closely Held vs. Publicly Held Corporations

Whether Hobby Lobby can keep thriving in an increasingly competitive and digital world remains to be seen – but its track record so far suggests it would be unwise to bet against this crafty company. However, remaining private also means Hobby Lobby has forgone some of the benefits of being public, like easier access to capital and the ability to use stock as compensation. Its financials remain largely shielded from public view. The process typically involves hiring an investment bank to underwrite the offering, filing registration statements with the Securities and Exchange Commission (SEC), and holding a “roadshow” to market the stock to potential investors. If successful, an IPO can raise billions of dollars for a company while also providing liquidity for existing shareholders.

• As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed.
• HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services.
• While the chain has flourished into a billion-dollar business, the Greens have opted to keep control rather than sell shares to outside investors.
• A third corporate law mistake is the Court’s assumption that its opinion can be limited to closely held companies.
• But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities.

But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases. Ante, at 9–10, and n. 41  In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, post, at 30.

See ante, at 20–25. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”).

But by most indications, calculated growth continued into the 2000s and 2010s even amidst the Great Recession. When these shareholders affect transactions, tax implications and controlling interest concerns will often come into play, as will insider trading disclosures. It is also difficult to properly value the company. The lack of shares on the open market makes it challenging to get the information necessary to make such estimates.

Four dissenting justices (Ginsburg, Breyer, Kagan, Sotomayor) said the mandate was not coercive of religious beliefs because it only required the religious owners to support a health insurance program. Since it would be up to each employee to decide which services to choose, the owners’ part in that choice was too attenuated to trigger any religious protections. Furthermore, the majority pointed to the regulations governing how nonprofit religious groups can receive exemptions from the coverage by filling out a form as evidence that the government could still achieve the goals of the ACA’s insurance coverage without burdening Hobby Lobby’s claimed religious rights. In the Hobby Lobby case, Hobby Lobby and Conestoga argued that even though Hobby Lobby is a for-profit business, it should be protected under RFRA, and that paying premiums for insurance that could be used to cover contraceptives was a substantial burden of the business’s religious rights. The companies also had arguments rooted in the First Amendment, but the Supreme Court held that it could resolve the case using only the statutory arguments.

418, 424 (2006). “[T]he American community is today, as it long has been, a rich mosaic of religious faiths.” Town of Greece v. Galloway, 572 U. ___, ___ (2014) (Kagan, J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.