The decision’s most important feature is its rejection of that contention. The five justices in the majority””Alito, Roberts, Scalia, Thomas, and Kennedy””explicitly reject it, thus establishing as a matter of law the proposition that RFRA protections can apply to for-profit businesses, and do apply to closely held corporations. It leaves open the question, which is probably purely theoretical, whether RFRA protections apply to large, publicly traded companies. Two of the four dissenting justices””Breyer and Kagan””decline to reach or opine on the question of whether RFRA protects for-profit businesses””pointedly refusing to join this aspect of the dissent filed by Justices Ginsburg and Sotomayor who, alone, contend that for-profit businesses do not enjoy RFRA protections.
Friends of First Things will not be able to resist the feeling that the late Richard John Neuhaus, the founder of this journal and the leader of the opposition to the idea that religion is a purely “private” activity that has no legitimate role in the public square, is smiling down from heaven. Yesterday was Fr. Neuhaus’s big day. The Court ruled that the Greens did not forfeit their rights to run their business in line with their conscientious religious beliefs merely by choosing the corporate form.
Just as the for-profit company known as the New York Times enjoys the right to freedom of the press under the First Amendment, so Hobby Lobby enjoys the right to religious freedom protected by RFRA. Protection for religious liberty doesn’t stop where commerce begins.