President Bill Clinton signs the Religious Freedom Restoration Act on the White House's South Lawn on Nov. 16, 1993.

The 'Splainer: RFRA and the Hobby Lobby case

The ‘Splainer (as in “You’ve got some ‘splaining to do”) is an occasional online feature in which Kimberly Winston and other RNS staff give you everything you need to know about current events to hold your own at a cocktail party.

Today, the Supreme Court ruled that closely held corporations cannot be compelled to provide contraceptive coverage that violates the religious beliefs of their owners. Writing for the majority, Justice Samuel Alito said the Religious Freedom Restoration Act applies to regulations that govern such companies.

President Bill Clinton signs the Religious Freedom Restoration Act at the White House's South Lawn on Nov. 16, 1993.

President Bill Clinton signs the Religious Freedom Restoration Act on the White House's South Lawn on Nov. 16, 1993.

So, what is this RFRA of which the Supremes speak? Stay with us and there’s ice cream, a puppy and even hallucinogenic drugs in it for you.

Q: What is RFRA, and why does it sound like a small barking dog?

A: RFRA stands for the Religious Freedom Restoration Act. It was passed almost unanimously in 1993 and was signed into law by President Clinton. It applies only to the federal government, not the states, though some states have their own versions. RFRA is intended to protect religion from the federal government. As for why the acronym sounds like a small yappy dog, think of it this way -- that small dog is saying “HEY, YOU, GOVERNMENT! DON”T MESS WITH RELIGIOUS FREEDOM OR I’LL BITE YOU.”

Q: Wait a minute. The First Amendment states that Congress shall not pass laws prohibiting the free exercise of religion. How did we even end up with RFRA?

A: RFRA was a response to an unpopular 1990 Supreme Court decision called Employment Division v. Smith. In that case, the Supreme Court ruled against two Native Americans who had been denied state unemployment benefits after they checked positive for mescaline, the active hallucinogenic compound found in peyote cactus. Members of the Native American Church use peyote in their religious ceremonies. The Supremes' ruling against the Native Americans' religious practice really ticked off First Amendment watchdogs of all kinds -- liberal, conservative, evangelical, Jewish and secular. They lobbied Congress and the result was RFRA.

Q: OK, so now we have our puppy and our hallucinogenic drugs. Where’s the ice cream and cake?

A: Well, there’s a test for RFRA, but one with a fun name -- the Sherbert Test. Kinda like ice cream. The Sherbert Test says that if the government wants to “burden,” or hinder, someone’s religious practice, two criteria must be met. First, the burden must be “necessary for the furtherance of a compelling government interest"; second, the burden must be “the least restrictive way” to further that government interest.

Q: Can you speak English, not legalese?

A: Basically, this is what RFRA means: If the government wants to curb your religious practice, it has to prove that it has such a compelling reason that not doing so would keep it from governing properly. And if the government is going to curb someone’s religious practice, it must do so in the least intrusive way possible.

Q: OK. So what does that have to do with Hobby Lobby and today’s Supreme Court decision?

A: Hobby Lobby and Conestoga Wood Specialties Corp. asked for an exemption from the Affordable Care Act’s requirement that they provide the full range of contraception coverage to their employees. The owners of Hobby Lobby are evangelical Christians and the owners of Conestoga are Mennonites. They argued their religious objections to emergency contraception should be protected under RFRA.

Q: Wait. Companies can practice religion?

A: That’s the question at the heart of this case: Can a corporation be said to have religious practices? In this ruling the judges said yes, corporations, which are composed of people, can be said to have religious practices and sometimes those practices are worth protecting under RFRA.

Q: So now what? Is this a big deal case or just a minor hit for the Supremes?

A:  It’s a big deal. The win by Hobby Lobby and Conestoga means the courts might see a lot more challenges from for-profit corporations to laws they feel conflict with their owners’ religious beliefs. But the court has also carefully said that its ruling in this case applies only to contraception coverage, so religious employers should not see this as an invitation to challenge the Affordable Care Act on vaccines and blood transfusions, both of which some religious people object to.



  1. Your “cute” explanation of the Supreme Court decision on Hobby Lobby case and RFRA was either cute nor very informative. RNS can certainly do better.

  2. Author

    I hope you will bear with us as we try new things for new audiences. We certainly did not mean to offend and we value your opinion.

  3. I liked the article. As a former lawyer, now Pastoring, it did a fine job of simply informing and holding attention.

  4. Yours was the first RFRA “splainer” article that came up, and it explained the issues quite succinctly and in a nutshell. Thanks.

  5. Kimberly,

    This is the most sensible explanation I have seen! I have been responding to many irate people who believe the SCOTUS decision is precedent, when its RFRA that is the core here. I tell people if they don’t like the SCOTUS decision then go out and change or repeal RFRA.. this is the basis for Hobby Lobby’s and Conestoga’s protection. Just like Roe v. Wade has been the protection to strike down many… many… many… attempts to curb reproductive rights.

  6. Author

    Thanks to all – of all opinions – as we experiment with new formats. We really are reading your feedback and taking it seriously.

  7. Thanks for your article. It helped me a lot to put things in perspective, since all the articles that I’ve read presumed that the readers had knowledge on the law.

  8. Contrary to your first comment, I found this explanation very helpful for the non-expert. This is language I can reproduce in a conversation and be informative and useful. There are plenty of places to go for more depth so please do not hesitate to seek out other discussions but this one gave good value.

  9. Q: Wait. Companies can practice religion?

    A: That’s the question at the heart of this case: Can a corporation be said to have religious practices? In this ruling the judges said yes, corporations, which are composed of people, can be said to have religious practices and sometimes those practices are worth protecting under RFRA.

    HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot“exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profit making objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles.

  10. I think your comment should have been prefaced with, my opinion is. since you were only speaking for yourself and not for me. My opinion is that it was funny and informative, and I don’t care if you thought they could do better. See how that works.

  11. This was better background and a clearer summary of the implications of the Hobby Lobby decision than any I have seen in other media so far, and I am talking about the Washington Post, the Times, TV news, etc. And it was funny. Keep on ‘splainin stuff Kimberly.

  12. So the key point of the RFRA that allowed this case to be heard is that it says if religion and government interest come into conflict then the government must use “least restrictive way in which to further the government interest”.

    The HHS wanted to fine Hobby Lobby $475 million per year. The cost of all their employees complete healthcare insurance was a third of that. if they dropped employee coverage and left their employees to buy their own insurance then they would have to pay a $26 million per year fine. The only reason why the Supreme Court even heard the case was the level of the fine that the Dept. of HHS wanted to levy. Had they given a reasonable fine then there would be no court case.

  13. Corporations cannot exercise religious beliefs because there is no way to impute them to one without “piercing the corporate veil”.

    Religious beliefs have no rational connection to the operations and existence of a corporation. Incorporation is creating a legal barrier between an owner’s personal existence and a company’s operations. It is not its owners, it cannot adopt their religious beliefs from them. As a form of property that would mean a company converts religiously upon the sale of its stock. There is nothing rational about that premise.

    This is a stark contrast to speech and political involvement. All of which can be reasonably related to a company’s ability to operate and profit. Laws and regulations can be seen to have a direct effect on corporate actions. Religion at best can be marketing, but it has no inherent purpose for a for-profit corporation.

    SCOTUS contorted precedent to come up with the result they wanted. You can tell how gunshy they were about applying its ideas on an intellectual basis by how narrowly they said the decision was limited.

  14. This is why corporations should not have anything to do with people’s health care. Single payer! Everyone gets good health care. Equal health care.

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