(Slip Opinion) OCTOBER TERM, 2013 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BURWELL, SECRETARY OF HEALTH AND HUMAN 

SERVICES, ET AL. v. HOBBY LOBBY STORES, INC., 

ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE TENTH CIRCUIT 

No. 13–354. Argued March 25, 2014—Decided June 30, 2014* 

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the 

“Government [from] substantially burden[ing] a person’s exercise of

religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the

burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering

that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), 

(b). As amended by the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, 

whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A).

At issue here are regulations promulgated by the Department of

Health and Human Services (HHS) under the Patient Protection and

Affordable Care Act of 2010 (ACA), which, as relevant here, requires 

specified employers’ group health plans to furnish “preventive care 

and screenings” for women without “any cost sharing requirements,”

42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of 

preventive care must be covered; it authorized the Health Resources 

and Services Administration, a component of HHS, to decide. Ibid. 

Nonexempt employers are generally required to provide coverage for 

the 20 contraceptive methods approved by the Food and Drug Admin-

—————— 

*Together with No. 13–356, Conestoga Wood Specialties Corp. et al. 

v. Burwell, Secretary of Health and Human Services, et al., on certiorari 

to the United States Court of Appeals for the Third Circuit. 
 

 

 

 

2 BURWELL v. HOBBY LOBBY STORES, INC. 

Syllabus 

istration, including the 4 that may have the effect of preventing an 

already fertilized egg from developing any further by inhibiting its

attachment to the uterus. Religious employers, such as churches, are 

exempt from this contraceptive mandate. HHS has also effectively 

exempted religious nonprofit organizations with religious objections

to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage

from the employer’s plan and provide plan participants with separate 

payments for contraceptive services without imposing any costsharing requirements on the employer, its insurance plan, or its employee beneficiaries.

In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and

that it would violate their religion to facilitate access to contraceptive 

drugs or devices that operate after that point. In separate actions,

they sued HHS and other federal officials and agencies (collectively 

HHS) under RFRA and the Free Exercise Clause, seeking to enjoin 

application of the contraceptive mandate insofar as it requires them 

to provide health coverage for the four objectionable contraceptives.

In No. 13–356, the District Court denied the Hahns and their company—Conestoga Wood Specialties—a preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could not “engage in religious exercise” under RFRA or the First Amendment, and

that the mandate imposed no requirements on the Hahns in their

personal capacity. In No. 13–354, the Greens, their children, and 

their companies—Hobby Lobby Stores and Mardel—were also denied

a preliminary injunction, but the Tenth Circuit reversed. It held that 

the Greens’ businesses are “persons” under RFRA, and that the corporations had established a likelihood of success on their RFRA claim 

because the contraceptive mandate substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing the mandate against them; in the alternative, the 

court held that HHS had not proved that the mandate was the “least 

restrictive means” of furthering a compelling governmental interest. 

Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA. Pp. 16–49.

(a) RFRA applies to regulations that govern the activities of closely

held for-profit corporations like Conestoga, Hobby Lobby, and Mardel. Pp. 16–31. 

(1) HHS argues that the companies cannot sue because they are 

for-profit corporations, and that the owners cannot sue because the 

regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as cor-
 

 

 

 

Cite as: 573 U. S. ____ (2014) 3 

Syllabus 

porations. RFRA’s text shows that Congress designed the statute to

provide very broad protection for religious liberty and did not intend 

to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,”

but the purpose of extending rights to corporations is to protect the 

rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of 

closely held corporations thus protects the religious liberty of the 

humans who own and control them. Pp. 16–19.

(2) HHS and the dissent make several unpersuasive arguments.

Pp. 19–31. 

(i) Nothing in RFRA suggests a congressional intent to depart

from the Dictionary Act definition of “person,” which “include[s] corporations, . . . as well as individuals.” 1 U. S. C. §1. The Court has 

entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União 

do Vegetal, 546 U. S. 418. And HHS’s concession that a nonprofit 

corporation can be a “person” under RFRA effectively dispatches any 

argument that the term does not reach for-profit corporations; no

conceivable definition of “person” includes natural persons and nonprofit corporations, but not for-profit corporations. Pp. 19–20. 

(ii) 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 profitmaking 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. Pp. 20–25.

(iii) Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free Exercise Clause precedents, 

none of which squarely recognized free-exercise rights for for-profit

corporations. First, nothing in RFRA as originally enacted suggested

that its definition of “exercise of religion” was meant to be tied to pre-
 

 

 

4 BURWELL v. HOBBY LOBBY STORES, INC. 

Syllabus 

Smith interpretations of the First Amendment. Second, if RFRA’s 

original text were not clear enough, the RLUIPA amendment surely 

dispels any doubt that Congress intended to separate the definition of

the phrase from that in First Amendment case law. Third, the preSmith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 

366 U. S. 617, suggests, if anything, that for-profit corporations can

exercise religion. Finally, the results would be absurd if RFRA, a law

enacted to provide very broad protection for religious liberty, merely 

restored this Court’s pre-Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. Pp. 25–28.

(3) Finally, HHS contends that Congress could not have wanted 

RFRA to apply to for-profit corporations because of the difficulty of

ascertaining the “beliefs” of large, publicly traded corporations, but

HHS has not pointed to any example of a publicly traded corporation

asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. HHS has also provided no evidence

that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations 

from RFRA’s protection. That disputes among the owners of corporations might arise is not a problem unique to this context. State corporate law provides a ready means for resolving any conflicts by, for 

example, dictating how a corporation can establish its governing 

structure. Courts will turn to that structure and the underlying state

law in resolving disputes. Pp. 29–31.

(b) HHS’s contraceptive mandate substantially burdens the exercise of religion. Pp. 31–38.

(1) It requires the Hahns and Greens to engage in conduct that

seriously violates their sincere religious belief that life begins at conception. If they and their companies refuse to provide contraceptive 

coverage, they face severe economic consequences: about $475 million

per year for Hobby Lobby, $33 million per year for Conestoga, and 

$15 million per year for Mardel. And if they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby,

$1.8 million for Conestoga, and $800,000 for Mardel. P. 32. 

(2) Amici supporting HHS argue that the $2,000 per-employee

penalty is less than the average cost of providing insurance, and

therefore that dropping insurance coverage eliminates any substantial burden imposed by the mandate. HHS has never argued this and 

the Court does not know its position with respect to the argument. 

But even if the Court reached the argument, it would find it unpersuasive: It ignores the fact that the plaintiffs have religious reasons

for providing health-insurance coverage for their employees, and it is

far from clear that the net cost to the companies of providing insur-
 

 

 

Cite as: 573 U. S. ____ (2014) 5 

Syllabus 

ance is more than the cost of dropping their insurance plans and paying the ACA penalty. Pp. 32–35.

(3) HHS argues that the connection between what the objecting

parties must do and the end that they find to be morally wrong is too

attenuated because it is the employee who will choose the coverage

and contraceptive method she uses. But RFRA’s question is whether

the mandate imposes a substantial burden on the objecting parties’

ability to conduct business in accordance with their religious beliefs.

The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act

that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the 

Court to say that the religious beliefs of the plaintiffs are mistaken or

unreasonable. In fact, this Court considered and rejected a nearly

identical argument in Thomas v. Review Bd. of Indiana Employment 

Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to 

determine” whether the plaintiffs’ asserted religious belief reflects

“an honest conviction,” id., at 716, and there is no dispute here that it 

does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of 

Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distinguished. Pp. 35–38. 

(c) The Court assumes that the interest in guaranteeing cost-free

access to the four challenged contraceptive methods is a compelling

governmental interest, but the Government has failed to show that

the contraceptive mandate is the least restrictive means of furthering 

that interest. Pp. 38–49. 

(1) The Court assumes that the interest in guaranteeing cost-free 

access to the four challenged contraceptive methods is compelling 

within the meaning of RFRA. Pp. 39–40.

(2) The Government has failed to satisfy RFRA’s leastrestrictive-means standard. HHS has not shown that it lacks other 

means of achieving its desired goal without imposing a substantial

burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable 

to obtain coverage due to their employers’ religious objections. Or it 

could extend the accommodation that HHS has already established

for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation 

does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their

religion and it still serves HHS’s stated interests. Pp. 40–45. 

(3) This decision concerns only the contraceptive mandate and

should not be understood to hold that all insurance-coverage man-
 

 

6 BURWELL v. HOBBY LOBBY STORES, INC. 

Syllabus 

dates, e.g., for vaccinations or blood transfusions, must necessarily

fall if they conflict with an employer’s religious beliefs. Nor does it 

provide a shield for employers who might cloak illegal discrimination

as a religious practice. United States v. Lee, 455 U. S. 252, which upheld the payment of Social Security taxes despite an employer’s religious objection, is not analogous. It turned primarily on the special 

problems associated with a national system of taxation; and if Lee 

were a RFRA case, the fundamental point would still be that there is

no less restrictive alternative to the categorical requirement to pay 

taxes. Here, there is an alternative to the contraceptive mandate.

Pp. 45–49. 

No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, reversed and remanded. 

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., 

and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a 

concurring opinion. GINSBURG, J., filed a dissenting opinion, in which 

SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as 

to all but Part III–C–1. BREYER and KAGAN, JJ., filed a dissenting opinion. 
 

 

_________________ 

_________________ 

Cite as: 573 U. S. ____ (2014) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 13–354 and 13–356 

SYLVIA BURWELL, SECRETARY OF HEALTH 

AND HUMAN SERVICES, ET AL., PETITIONERS 

13–354 v. 

HOBBY LOBBY STORES, INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
 

OF APPEALS FOR THE TENTH CIRCUIT
 

AND
 

CONESTOGA WOOD SPECIALTIES CORPORATION 

ET AL., PETITIONERS 

13–356 v. 

SYLVIA BURWELL, SECRETARY OF HEALTH 

AND HUMAN SERVICES, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
 

OF APPEALS FOR THE THIRD CIRCUIT
 

[June 30, 2014]

 JUSTICE ALITO delivered the opinion of the Court. 

We must decide in these cases whether the Religious 

Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,

42 U. S. C. §2000bb et seq., permits the United States

Department of Health and Human Services (HHS) to 

demand that three closely held corporations provide

health-insurance coverage for methods of contraception

that violate the sincerely held religious beliefs of the

companies’ owners. We hold that the regulations that 

impose this obligation violate RFRA, which prohibits the 
 

2 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

Federal Government from taking any action that substantially burdens the exercise of religion unless that action 

constitutes the least restrictive means of serving a compelling government interest.

In holding that the HHS mandate is unlawful, we reject 

HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize

their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of 

RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to

run their businesses as for-profit corporations in the manner required by their religious beliefs. 

Since RFRA applies in these cases, we must decide 

whether the challenged HHS regulations substantially 

burden the exercise of religion, and we hold that they do. 

The owners of the businesses have religious objections to

abortion, and according to their religious beliefs the four

contraceptive methods at issue are abortifacients. If the 

owners comply with the HHS mandate, they believe they

will be facilitating abortions, and if they do not comply,

they will pay a very heavy price—as much as $1.3 million 

per day, or about $475 million per year, in the case of one 

of the companies. If these consequences do not amount to

a substantial burden, it is hard to see what would. 

Under RFRA, a Government action that imposes a 

substantial burden on religious exercise must serve a 

compelling government interest, and we assume that the 

HHS regulations satisfy this requirement. But in order 

for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, 

and the mandate plainly fails that test. There are other 

ways in which Congress or HHS could equally ensure that 

every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved

contraceptives. 
Cite as: 573 U. S. ____ (2014) 3 

Opinion of the Court 

In fact, HHS has already devised and implemented a 

system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to 

all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage

without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net 

economic burden on the insurance companies that are 

required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the

same system cannot be made available when the owners of 

for-profit corporations have similar religious objections. 

We therefore conclude that this system constitutes an

alternative that achieves all of the Government’s aims 

while providing greater respect for religious liberty. And 

under RFRA, that conclusion means that enforcement of 

the HHS contraceptive mandate against the objecting

parties in these cases is unlawful. 

As this description of our reasoning shows, our holding

is very specific. We do not hold, as the principal dissent

alleges, that for-profit corporations and other commercial 

enterprises can “opt out of any law (saving only tax laws)

they judge incompatible with their sincerely held religious

beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we 

hold, as the dissent implies, that such corporations have

free rein to take steps that impose “disadvantages . . . on

others” or that require “the general public [to] pick up the

tab.” Post, at 1–2. And we certainly do not hold or suggest

that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women em-
 

 

4 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

ployed by Hobby Lobby.” Post, at 2.1 The effect of the 

HHS-created accommodation on the women employed by 

Hobby Lobby and the other companies involved in these

cases would be precisely zero. Under that accommodation, 

these women would still be entitled to all FDA-approved

contraceptives without cost sharing. 

I 

A 

Congress enacted RFRA in 1993 in order to provide very

broad protection for religious liberty. RFRA’s enactment 

came three years after this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 

U. S. 872 (1990), which largely repudiated the method of

analyzing free-exercise claims that had been used in cases 

like Sherbert v. Verner, 374 U. S. 398 (1963), and Wisconsin v. Yoder, 406 U. S. 205 (1972). In determining whether 

challenged government actions violated the Free Exercise 

Clause of the First Amendment, those decisions used a 

balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to 

serve a compelling government interest. Applying this 

test, the Court held in Sherbert that an employee who was 

fired for refusing to work on her Sabbath could not be 

denied unemployment benefits. 374 U. S., at 408–409. 

And in Yoder, the Court held that Amish children could 

not be required to comply with a state law demanding that 

they remain in school until the age of 16 even though their 

religion required them to focus on uniquely Amish values

and beliefs during their formative adolescent years. 406 

U. S., at 210–211, 234–236. 

In Smith, however, the Court rejected “the balancing 

—————— 

1See also post, at 8 (“The exemption sought by Hobby Lobby and 

Conestoga . . . would deny [their employees] access to contraceptive 

coverage that the ACA would otherwise secure”) 
 

 

Cite as: 573 U. S. ____ (2014) 5 

Opinion of the Court 

test set forth in Sherbert.” 494 U. S., at 883. Smith concerned two members of the Native American Church who 

were fired for ingesting peyote for sacramental purposes.

When they sought unemployment benefits, the State of

Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court,

applying the Sherbert test, held that the denial of benefits 

violated the Free Exercise Clause. 494 U. S., at 875. 

This Court then reversed, observing that use of the 

Sherbert test whenever a person objected on religious

grounds to the enforcement of a generally applicable law 

“would open the prospect of constitutionally required

religious exemptions from civic obligations of almost every 

conceivable kind.” 494 U. S., at 888. The Court therefore 

held that, under the First Amendment, “neutral, generally

applicable laws may be applied to religious practices even 

when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U. S. 507, 514 (1997). 

Congress responded to Smith by enacting RFRA. 

“[L]aws [that are] ‘neutral’ toward religion,” Congress 

found, “may burden religious exercise as surely as laws

intended to interfere with religious exercise.” 42 U. S. C. 

§2000bb(a)(2); see also §2000bb(a)(4). In order to ensure 

broad protection for religious liberty, RFRA provides that 

“Government shall not substantially burden a person’s

exercise of religion even if the burden results from a rule

of general applicability.” §2000bb–1(a).2 If the Government substantially burdens a person’s exercise of religion,

under the Act that person is entitled to an exemption from

the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of

a compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling govern-

—————— 

2The Act defines “government” to include any “department” or

“agency” of the United States. §2000bb–2(1). 
 

 

6 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

mental interest.” §2000bb–1(b).3 

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. As applied to a federal agency, RFRA is based on

the enumerated power that supports the particular agency’s work,4 but in attempting to regulate the States and

their subdivisions, Congress relied on its power under 

Section 5 of the Fourteenth Amendment to enforce the 

First Amendment. 521 U. S., at 516–517. In City of 

Boerne, however, we held that Congress had overstepped 

its Section 5 authority because “[t]he stringent test RFRA

demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as 

interpreted in Smith.” Id., at 533–534. See also id., at 

532. 

Following our decision in City of Boerne, Congress

passed the Religious Land Use and Institutionalized 

Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. 

§2000cc et seq. That statute, enacted under Congress’s 

Commerce and Spending Clause powers, imposes the 

same general test as RFRA but on a more limited category

of governmental actions. See Cutter v. Wilkinson, 544 

U. S. 709, 715–716 (2005). And, what is most relevant for 

present purposes, RLUIPA amended RFRA’s definition of

the “exercise of religion.” See §2000bb–2(4) (importing

RLUIPA definition). Before RLUIPA, RFRA’s definition 

—————— 

3 In City of Boerne v. Flores, 521 U. S., 507 (1997), we wrote that 

RFRA’s “least restrictive means requirement was not used in the preSmith jurisprudence RFRA purported to codify.” Id., at 509. On this 

understanding of our pre-Smith cases, RFRA did more than merely

restore the balancing test used in the Sherbert line of cases; it provided

even broader protection for religious liberty than was available under 

those decisions. 4See, e.g., Hankins v. Lyght, 441 F. 3d 96, 108 (CA2 2006); Guam v. 

Guerrero, 290 F. 3d 1210, 1220 (CA9 2002). 
 

 

Cite as: 573 U. S. ____ (2014) 7 

Opinion of the Court 

made reference to the First Amendment. See §2000bb–

2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, 

in an obvious effort to effect a complete separation from

First Amendment case law, Congress deleted the reference

to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not 

compelled by, or central to, a system of religious belief.”

§2000cc–5(7)(A). And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the

terms of this chapter and the Constitution.” §2000cc– 

3(g).5 

B 

At issue in these cases are HHS regulations promulgated under the Patient Protection and Affordable Care Act

of 2010 (ACA), 124 Stat. 119. ACA generally requires

employers with 50 or more full-time employees to offer 

“a group health plan or group health insurance coverage” 

that provides “minimum essential coverage.” 26 U. S. C. 

§5000A(f)(2); §§4980H(a), (c)(2). Any covered employer 

that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides

group health insurance but its plan fails to comply with

ACA’s group-health-plan requirements, the employer may 

be required to pay $100 per day for each affected “individ-

—————— 

5The principal dissent appears to contend that this rule of construction should apply only when defining the “exercise of religion” in an 

RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That 

argument is plainly wrong. Under this rule of construction, the phrase

“exercise of religion,” as it appears in RLUIPA, must be interpreted

broadly, and RFRA states that the same phrase, as used in RFRA, 

means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C. 

§2000bb–2(4). It necessarily follows that the “exercise of religion”

under RFRA must be given the same broad meaning that applies under

RLUIPA. 
 

8 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

ual.” §§4980D(a)–(b). And if the employer decides to stop

providing health insurance altogether and at least one 

full-time employee enrolls in a health plan and qualifies

for a subsidy on one of the government-run ACA exchanges,

the employer must pay $2,000 per year for each of its fulltime employees. §§4980H(a), (c)(1).

Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage 

to furnish “preventive care and screenings” for women 

without “any cost sharing requirements.” 42 U. S. C. 

§300gg–13(a)(4). Congress itself, however, did not specify 

what types of preventive care must be covered. Instead, 

Congress authorized the Health Resources and Services

Administration (HRSA), a component of HHS, to make 

that important and sensitive decision. Ibid. The HRSA in 

turn consulted the Institute of Medicine, a nonprofit group

of volunteer advisers, in determining which preventive 

services to require. See 77 Fed. Reg. 8725–8726 (2012).

In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive

Services Guidelines. See id., at 8725–8726, and n. 1; 

online at http://hrsa.gov/womensguidelines (all Internet 

materials as visited June 26, 2014, and available in Clerk 

of Court’s case file). The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, 

sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725 (internal quotation marks 

omitted). Although many of the required, FDA-approved

methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at 

issue in these cases) may have the effect of preventing an 

already fertilized egg from developing any further by 

inhibiting its attachment to the uterus. See Brief for HHS 
 

 

Cite as: 573 U. S. ____ (2014) 9 

Opinion of the Court 

in No. 13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medicines to Help You.7 

HHS also authorized the HRSA to establish exemptions

from the contraceptive mandate for “religious employers.”

45 CFR §147.131(a). That category encompasses “churches,

their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious

activities of any religious order.” See ibid (citing 26

U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines, 

HRSA exempted these organizations from the requirement 

to cover contraceptive services. See http://hrsa.gov/

womensguidelines.

In addition, HHS has effectively exempted certain 

religious nonprofit organizations, described under HHS

regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg.

39874 (2013). An “eligible organization” means a nonprofit 

organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of 

any contraceptive services required to be covered . . . on 

account of religious objections.” 45 CFR §147.131(b). To 

qualify for this accommodation, an employer must certify 

that it is such an organization. §147.131(b)(4). When a 

group-health-insurance issuer receives notice that one of

its clients has invoked this provision, the issuer must then 

exclude contraceptive coverage from the employer’s plan 

—————— 

6We will use “Brief for HHS” to refer to the Brief for Petitioners in 

No. 13–354 and the Brief for Respondents in No. 13–356. The federal 

parties are the Departments of HHS, Treasury, and Labor, and the

Secretaries of those Departments. 7Online at http://www.fda.gov/forconsumers/byaudience/forwomen/

freepublications/ucm313215.htm. The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, see, e.g., 62 

Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify 

them. 
 

 

10 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

and provide separate payments for contraceptive services 

for plan participants without imposing any cost-sharing 

requirements on the eligible organization, its insurance 

plan, or its employee beneficiaries. §147.131(c).8 Although this procedure requires the issuer to bear the cost of

these services, HHS has determined that this obligation 

will not impose any net expense on issuers because its cost 

will be less than or equal to the cost savings resulting 

from the services. 78 Fed. Reg. 39877.9 

In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of

its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March

23, 2010, and that have not made specified changes after 

that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. 42 

U. S. C. §§18011(a), (e). And employers with fewer than

50 employees are not required to provide health insurance 

—————— 

8 In the case of self-insured religious organizations entitled to the

accommodation, the third-party administrator of the organization must

“provide or arrange payments for contraceptive services” for the organization’s employees without imposing any cost-sharing requirements on

the eligible organization, its insurance plan, or its employee beneficiaries. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815– 

2713A(b)(2)). The regulations establish a mechanism for these thirdparty administrators to be compensated for their expenses by obtaining

a reduction in the fee paid by insurers to participate in the federally 

facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR

§54.9815–2713A (b)(3)). HHS believes that these fee reductions will not 

materially affect funding of the exchanges because “payments for 

contraceptive services will represent only a small portion of total

[exchange] user fees.” 78 Fed. Reg. 39882. 9 In a separate challenge to this framework for religious nonprofit

organizations, the Court recently ordered that, pending appeal, the 

eligible organizations be permitted to opt out of the contraceptive 

mandate by providing written notification of their objections to the 

Secretary of HHS, rather than to their insurance issuers or third-party

administrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. ___ 

(2014). 
 

 

Cite as: 573 U. S. ____ (2014) 11 

Opinion of the Court 

at all. 26 U. S. C. §4980H(c)(2).

All told, the contraceptive mandate “presently does not

apply to tens of millions of people.” 723 F. 3d 1114, 1143 

(CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million

nonelderly people in America with employer-sponsored

health plans were enrolled in grandfathered plans in 2013. 

Brief for HHS in No. 13–354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer 

Health Benefits, 2013 Annual Survey 43, 221.10 The count 

for employees working for firms that do not have to provide insurance at all because they employ fewer than 50

employees is 34 million workers. See The Whitehouse, 

Health Reform for Small Businesses: The Affordable Care 

Act Increases Choice and Saving Money for Small Businesses 1.11 

II
 

A 

Norman and Elizabeth Hahn and their three sons are 

devout members of the Mennonite Church, a Christian 

denomination. The Mennonite Church opposes abortion

and believes that “[t]he fetus in its earliest stages . . . 

shares humanity with those who conceived it.”12 

Fifty years ago, Norman Hahn started a wood-working

business in his garage, and since then, this company,

Conestoga Wood Specialties, has grown and now has 950

employees. Conestoga is organized under Pennsylvania 

—————— 

10While the Government predicts that this number will decline over

time, the total number of Americans working for employers to whom 

the contraceptive mandate does not apply is still substantial, and there

is no legal requirement that grandfathered plans ever be phased out. 11Online at http://www.whitehouse .gov/files /documents /health_ 

reform_for_small_businesses.pdf. 12Mennonite Church USA, Statement on Abortion, online at 

http://www.mennoniteusa.org/resource-center/resources/statements-andresolutions/statement-on-abortion/. 
 

 

 

12 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

law as a for-profit corporation. The Hahns exercise sole 

ownership of the closely held business; they control its

board of directors and hold all of its voting shares. One of 

the Hahn sons serves as the president and CEO.

The Hahns believe that they are required to run their

business “in accordance with their religious beliefs and 

moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013).

To that end, the company’s mission, as they see it, is to 

“operate in a professional environment founded upon the

highest ethical, moral, and Christian principles.” Ibid. 

(internal quotation marks omitted). The company’s “Vision and Values Statements” affirms that Conestoga

endeavors to “ensur[e] a reasonable profit in [a] manner 

that reflects [the Hahns’] Christian heritage.” App. in No.

13–356, p. 94 (complaint).

As explained in Conestoga’s board-adopted “Statement 

on the Sanctity of Human Life,” the Hahns believe that

“human life begins at conception.” 724 F. 3d 377, 382, and 

n. 5 (CA3 2013) (internal quotation marks omitted). It is 

therefore “against [their] moral conviction to be involved

in the termination of human life” after conception, which 

they believe is a “sin against God to which they are held 

accountable.” Ibid. (internal quotation marks omitted).

The Hahns have accordingly excluded from the grouphealth-insurance plan they offer to their employees certain 

contraceptive methods that they consider to be abortifacients. Id., at 382. 

The Hahns and Conestoga sued HHS and other federal

officials and agencies under RFRA and the Free Exercise 

Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires 

them to provide health-insurance coverage for four FDAapproved contraceptives that may operate after the fertilization of an egg.13 These include two forms of emergency 

—————— 

13The Hahns and Conestoga also claimed that the contraceptive 
Cite as: 573 U. S. ____ (2014) 13 

Opinion of the Court 

contraception commonly called “morning after” pills and 

two types of intrauterine devices.14 

In opposing the requirement to provide coverage for the 

contraceptives to which they object, the Hahns argued 

that “it is immoral and sinful for [them] to intentionally 

participate in, pay for, facilitate, or otherwise support 

these drugs.” Ibid. The District Court denied a preliminary injunction, see 917 F. Supp. 2d, at 419, and the Third 

Circuit affirmed in a divided opinion, holding that “forprofit, secular corporations cannot engage in religious

exercise” within the meaning of RFRA or the First 

Amendment. 724 F. 3d, at 381. The Third Circuit also 

rejected the claims brought by the Hahns themselves

because it concluded that the HHS “[m]andate does not 

impose any requirements on the Hahns” in their personal

capacity. Id., at 389. 

B 

David and Barbara Green and their three children are 

Christians who own and operate two family businesses. 

Forty-five years ago, David Green started an arts-andcrafts store that has grown into a nationwide chain called 

Hobby Lobby. There are now 500 Hobby Lobby stores, and 

the company has more than 13,000 employees. 723 F. 3d, 

at 1122. Hobby Lobby is organized as a for-profit corporation under Oklahoma law. 

One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs 

close to 400 people. Ibid. Mardel is also organized as a

for-profit corporation under Oklahoma law. 

Though these two businesses have expanded over the 

—————— 

mandate violates the Fifth Amendment and the Administrative Procedure Act, 5 U. S. C. §553, but those claims are not before us. 14See, e.g., WebMD Health News, New Morning-After Pill Ella Wins

FDA Approval, online at http://www.webmd.com/sex/birth-control/news/

20100813/new-morning-after-pill-ella-wins-fda-approval. 
 

 

 

14 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

years, they remain closely held, and David, Barbara, and 

their children retain exclusive control of both companies. 

Ibid. David serves as the CEO of Hobby Lobby, and his

three children serve as the president, vice president, and 

vice CEO. See Brief for Respondents in No. 13–354, p. 8.15 

Hobby Lobby’s statement of purpose commits the

Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical 

principles.” App. in No. 13–354, pp. 134–135 (complaint).

Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and 

to use the family assets to support Christian ministries. 

723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays,

even though the Greens calculate that they lose millions 

in sales annually by doing so. Id., at 1122; App. in No. 13– 

354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use;

they contribute profits to Christian missionaries and 

ministries; and they buy hundreds of full-page newspaper 

ads inviting people to “know Jesus as Lord and Savior.” 

Ibid. (internal quotation marks omitted).

Like the Hahns, the Greens believe that life begins at 

conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate

after that point. 723 F. 3d, at 1122. They specifically

object to the same four contraceptive methods as the 

Hahns and, like the Hahns, they have no objection to the 

other 16 FDA-approved methods of birth control. Id., at 

1125. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan 

—————— 

15The Greens operate Hobby Lobby and Mardel through a management trust, of which each member of the family serves as trustee. 723 

F. 3d 1114, 1122 (CA10 2013). The family provided that the trust

would also be governed according to their religious principles. Ibid. 
 

Cite as: 573 U. S. ____ (2014) 15 

Opinion of the Court 

because Hobby Lobby elected not to retain grandfathered

status before the contraceptive mandate was proposed. 

Id., at 1124. 

The Greens, Hobby Lobby, and Mardel sued HHS and 

other federal agencies and officials to challenge the contraceptive mandate under RFRA and the Free Exercise

Clause.16 The District Court denied a preliminary injunction, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the 

plaintiffs appealed, moving for initial en banc consideration. The Tenth Circuit granted that motion and reversed 

in a divided opinion. Contrary to the conclusion of the

Third Circuit, the Tenth Circuit held that the Greens’ two 

for-profit businesses are “persons” within the meaning of 

RFRA and therefore may bring suit under that law. 

The court then held that the corporations had established a likelihood of success on their RFRA claim. 723 

F. 3d, at 1140–1147. The court concluded that the contraceptive mandate substantially burdened the exercise of 

religion by requiring the companies to choose between 

“compromis[ing] their religious beliefs” and paying a

heavy fee—either “close to $475 million more in taxes

every year” if they simply refused to provide coverage for 

the contraceptives at issue, or “roughly $26 million” annually if they “drop[ped] health-insurance benefits for all 

employees.” Id., at 1141. 

The court next held that HHS had failed to demonstrate 

a compelling interest in enforcing the mandate against the

Greens’ businesses and, in the alternative, that HHS had 

failed to prove that enforcement of the mandate was the

“least restrictive means” of furthering the Government’s 

asserted interests. Id., at 1143–1144 (emphasis deleted;

internal quotation marks omitted). After concluding that

the companies had “demonstrated irreparable harm,” the 

—————— 

16They also raised a claim under the Administrative Procedure Act, 5

U. S. C. §553. 
 

 

16 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

court reversed and remanded for the District Court to 

consider the remaining factors of the preliminaryinjunction test. Id., at 1147.17 

We granted certiorari. 571 U. S. ___ (2013). 

III
 

A 

RFRA prohibits the “Government [from] substantially 

burden[ing] a person’s exercise of religion even if the

burden results from a rule of general applicability” unless

the Government “demonstrates that application of the 

burden to the person—(1) is in furtherance of a compelling 

governmental interest; and (2) is the least restrictive 

means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b) (emphasis added).

The first question that we must address is whether this 

provision applies to regulations that govern the activities 

of for-profit corporations like Hobby Lobby, Conestoga,

and Mardel. 

HHS contends that neither these companies nor their 

owners can even be heard under RFRA. According to

HHS, the companies cannot sue because they seek to 

make a profit for their owners, and the owners cannot

be heard because the regulations, at least as a formal matter, apply only to the companies and not to the owners 

as individuals. HHS’s argument would have dramatic 

consequences.

Consider this Court’s decision in Braunfeld v. Brown, 

—————— 

17Given its RFRA ruling, the court declined to address the plaintiffs’

free-exercise claim or the question whether the Greens could bring 

RFRA claims as individual owners of Hobby Lobby and Mardel. Four 

judges, however, concluded that the Greens could do so, see 723 F. 3d,

at 1156 (Gorsuch, J., concurring); id., at 1184 (Matheson, J., concurring

in part and dissenting in part), and three of those judges would have

granted plaintiffs a preliminary injunction, see id., at 1156 (Gorsuch, 

J., concurring). 
 

 

 

Cite as: 573 U. S. ____ (2014) 17 

Opinion of the Court 

366 U. S. 599 (1961) (plurality opinion). In that case, five 

Orthodox Jewish merchants who ran small retail businesses in Philadelphia challenged a Pennsylvania Sunday

closing law as a violation of the Free Exercise Clause.

Because of their faith, these merchants closed their shops

on Saturday, and they argued that requiring them to

remain shut on Sunday threatened them with financial 

ruin. The Court entertained their claim (although it ruled 

against them on the merits), and if a similar claim were

raised today under RFRA against a jurisdiction still subject to the Act (for example, the District of Columbia, see 

42 U. S. C. §2000bb–2(2)), the merchants would be entitled to be heard. According to HHS, however, if these 

merchants chose to incorporate their businesses—without in any way changing the size or nature of their businesses—they would forfeit all RFRA (and free-exercise) 

rights. HHS would put these merchants to a difficult 

choice: either give up the right to seek judicial protection 

of their religious liberty or forgo the benefits, available to

their competitors, of operating as corporations.

As we have seen, RFRA was designed to provide very

broad protection for religious liberty. By enacting RFRA, 

Congress went far beyond what this Court has held is

constitutionally required.18 Is there any reason to think

that the Congress that enacted such sweeping protection

put small-business owners to the choice that HHS suggests? An examination of RFRA’s text, to which we turn 

—————— 

18As discussed, n. 3, supra, in City of Boerne we stated that RFRA, by

imposing a least-restrictive-means test, went beyond what was required by our pre-Smith decisions. Although the author of the principal

dissent joined the Court’s opinion in City of Boerne, she now claims that 

the statement was incorrect. Post, at 12. For present purposes, it is

unnecessary to adjudicate this dispute. Even if RFRA simply restored 

the status quo ante, there is no reason to believe, as HHS and the

dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre-Smith cases. See 

infra, at 25–28. 
 

 

18 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

in the next part of this opinion, reveals that Congress did

no such thing.

As we will show, Congress provided protection for people

like the Hahns and Greens by employing a familiar legal 

fiction: It included corporations within RFRA’s definition 

of “persons.” But it is important to keep in mind that the 

purpose of this fiction is to provide protection for human

beings. A corporation is simply a form of organization 

used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of 

the people (including shareholders, officers, and employees) who are associated with a corporation in one way or 

another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect

the rights of these people. For example, extending Fourth 

Amendment protection to corporations protects the privacy

interests of employees and others associated with the 

company. Protecting corporations from government seizure of their property without just compensation protects 

all those who have a stake in the corporations’ financial 

well-being. And protecting the free-exercise rights of

corporations like Hobby Lobby, Conestoga, and Mardel

protects the religious liberty of the humans who own and 

control those companies.

In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote

as follows: 

“General business corporations do not, separate and 

apart from the actions or belief systems of their individual owners or employees, exercise religion. They do

not pray, worship, observe sacraments or take other

religiously-motivated actions separate and apart from

the intention and direction of their individual actors.” 

724 F. 3d, at 385 (emphasis added). 

All of this is true—but quite beside the point. Corpora-
Cite as: 573 U. S. ____ (2014) 19 

Opinion of the Court 

tions, “separate and apart from” the human beings who 

own, run, and are employed by them, cannot do anything 

at all. 

B 

1 

As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA

itself does not define the term “person.” We therefore look 

to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the 

context indicates otherwise.” 1 U. S. C. §1.

Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, 

partnerships, societies, and joint stock companies, as well

as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. 

___, ___ (2011) (slip op., at 6) (“We have no doubt that 

‘person,’ in a legal setting, often refers to artificial entities. 

The Dictionary Act makes that clear”). Thus, unless there 

is something about the RFRA context that “indicates

otherwise,” the Dictionary Act provides a quick, clear, and

affirmative answer to the question whether the companies 

involved in these cases may be heard. 

We see nothing in RFRA that suggests a congressional 

intent to depart from the Dictionary Act definition, and 

HHS makes little effort to argue otherwise. We have 

entertained RFRA and free-exercise claims brought by 

nonprofit corporations, see Gonzales v. O Centro Espírita 

Beneficiente União do Vegetal, 546 U. S. 418 (2006) 

(RFRA); Hosanna-Tabor Evangelical Lutheran Church 

and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); 

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. 

S. 520 (1993) (Free Exercise), and HHS concedes that a

nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17; 
 

 

 

20 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

Reply Brief in No. 13–354, at 7–8.19 

This concession effectively dispatches any argument

that the term “person” as used in RFRA does not reach the 

closely held corporations involved in these cases. No 

known understanding of the term “person” includes some 

but not all corporations. The term “person” sometimes

encompasses artificial persons (as the Dictionary Act

instructs), and it sometimes is limited to natural persons.

But no conceivable definition of the term includes natural 

persons and nonprofit corporations, but not for-profit 

corporations.20 Cf. Clark v. Martinez, 543 U. S. 371, 378 

(2005) (“To give th[e] same words a different meaning for 

each category would be to invent a statute rather than

interpret one”). 

2 

The principal argument advanced by HHS and the

principal dissent regarding RFRA protection for Hobby 

Lobby, Conestoga, and Mardel focuses not on the statutory 

term “person,” but on the phrase “exercise of religion.”

According to HHS and the dissent, these corporations are 

not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any 

persuasive explanation for this conclusion.

Is it because of the corporate form? The corporate form

alone cannot provide the explanation because, as we have 

pointed out, HHS concedes that nonprofit corporations can 

—————— 

19Cf. Brief for Federal Petitioners in O Centro, O. T. 2004, No. 04– 

1084, p. II (stating that the organizational respondent was “a New 

Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor, 

O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesiastical corporation”). 20Not only does the Government concede that the term “persons” in

RFRA includes nonprofit corporations, it goes further and appears to

concede that the term might also encompass other artificial entities,

namely, general partnerships and unincorporated associations. See 

Brief for HHS in No. 13–354, at 28, 40. 
Cite as: 573 U. S. ____ (2014) 21 

Opinion of the Court 

be protected by RFRA. The dissent suggests that nonprofit 

corporations are special because furthering their religious “autonomy . . . often furthers individual religious

freedom as well.” Post, at 15 (quoting Corporation of 

Presiding Bishop of Church of Jesus Christ of Latter-day 

Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., 

concurring in judgment)). But this principle applies

equally to for-profit corporations: Furthering their religious freedom also “furthers individual religious freedom.” 

In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the 

religious liberty of the Greens and the Hahns.21 

If the corporate form is not enough, what about the 

profit-making objective? In Braunfeld, 366 U. S. 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 are “engaged in for religious reasons.” Smith, 

494 U. S., at 877. 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. Braunfeld, supra, at 605; see 

United States v. Lee, 455 U. S. 252, 257 (1982) (recognizing 

that “compulsory participation in the social security system interferes with [Amish employers’] free exercise 

—————— 

21Although the principal dissent seems to think that Justice Brennan’s statement in Amos provides a ground for holding that for-profit

corporations may not assert free-exercise claims, that was not Justice 

Brennan’s view. See Gallagher v. Crown Kosher Super Market of 

Mass., Inc., 366 U. S. 617, 642 (1961) (dissenting opinion); infra, at 26– 

27. 
 

22 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

rights”).

 If, as Braunfeld recognized, a sole proprietorship that 

seeks to make a profit may assert a free-exercise claim,22 

why can’t Hobby Lobby, Conestoga, and Mardel do the 

same? 

Some lower court judges have suggested that RFRA

does not protect for-profit corporations because the purpose of such corporations is simply to make money.23 This 

—————— 

22 It is revealing that the principal dissent cannot even bring itself to

acknowledge that Braunfeld was correct in entertaining the merchants’ 

claims. See post, at 19 (dismissing the relevance of Braunfeld in part

because “[t]he free exercise claim asserted there was promptly rejected 

on the merits”). 23See, e.g., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artificial being,’ . . . that was created to make money” could exercise religion); Grote v. Sebelius, 708 F. 3d 850, 857 (CA7 2013) (Rovner, J. 

dissenting) (“So far as it appears, the mission of Grote Industries, like 

that of any other for-profit, secular business, is to make money in the 

commercial sphere”); Autocam Corp. v. Sebelius, 730 F. 3d 618, 626 

(CA7 2013) (“Congress did not intend to include corporations primarily

organized for secular, profit-seeking purposes as ‘persons’ under 

RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting)

(“[T]he specific purpose for which [a corporation] is created matters

greatly to how it will be categorized and treated under the law” and “it

is undisputed that Hobby Lobby and Mardel are for-profit corporations

focused on selling merchandise to consumers”).

The principal dissent makes a similar point, stating that “[f]or-profit 

corporations are different from religious nonprofits in that they use 

labor to make a profit, rather than to perpetuate the religious values

shared by a community of believers.” Post, at 18–19 (internal quotation 

marks omitted). The first half of this statement is a tautology; forprofit corporations do indeed differ from nonprofits insofar as they seek

to make a profit for their owners, but the second part is factually 

untrue. As the activities of the for-profit corporations involved in these 

cases show, some for-profit corporations do seek “to perpetuate the

religious values shared,” in these cases, by their owners. Conestoga’s 

Vision and Values Statement declares that the company is dedicated to

operating “in [a] manner that reflects our Christian heritage and the 

highest ethical and moral principles of business.” App. in No. 13–356, 

p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims that

the company “is committed to . . . Honoring the Lord in all we do by 
 

Cite as: 573 U. S. ____ (2014) 23 

Opinion of the Court 

argument flies in the face of modern corporate law. “Each 

American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general 

corporation act for any lawful purpose or business.” 1 J. 

Cox & T. Hazen, Treatise of the Law of Corporations §4:1, 

p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher,

Cyclopedia of the Law of Corporations §102 (rev. ed. 2010).

While it is certainly true that a central objective of forprofit corporations is to make money, modern corporate

law does not require for-profit corporations to pursue

profit at the expense of everything else, and many do not 

do so. For-profit corporations, with ownership approval,

support a wide variety of charitable causes, and it is not at

all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come 

readily to mind. So long as its owners agree, a for-profit 

corporation may take costly pollution-control and energyconservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in

other countries may exceed the requirements of local law 

regarding working conditions and benefits. If for-profit

corporations may pursue such worthy objectives, there is

no apparent reason why they may not further religious

objectives as well.

HHS would draw a sharp line between nonprofit corpo-

—————— 

operating . . . in a manner consistent with Biblical principles.” App. in

No. 13–354, p. 135. The dissent also believes that history is not on our 

side because even Blackstone recognized the distinction between 

“ecclesiastical and lay” corporations. Post, at 18. What Blackstone 

illustrates, however, is that dating back to 1765, there was no sharp

divide among corporations in their capacity to exercise religion; Blackstone recognized that even what he termed “lay” corporations might

serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the 

Law of England 458–459 (1765). And whatever may have been the case 

at the time of Blackstone, modern corporate law (and the law of the

States in which these three companies are incorporated) allows forprofit corporations to “perpetuat[e] religious values.” 
 

 

24 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

rations (which, HHS concedes, are protected by RFRA) 

and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all 

corporations that decline to organize as nonprofits do so in

order to maximize profit. For example, organizations with

religious and charitable aims might organize as for-profit 

corporations because of the potential advantages of that 

corporate form, such as the freedom to participate in

lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.24 In 

fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit 

goals, States have increasingly adopted laws formally 

recognizing hybrid corporate forms. Over half of the 

States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both a

benefit for the public and a profit for its owners.25 

In any event, the objectives that may properly be pur-

—————— 

24See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organizations 555 (4th ed. 2013) (describing Google.org, which “advance[s] its

charitable goals” while operating as a for-profit corporation to be able to

“invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce” 

(internal quotation marks and alterations omitted)); cf. 26 CFR 

§1.501(c)(3)–1(c)(3). 25See Benefit Corp Information Center, online at http://

www.benefitcorp.net/state-by-state-legislative-status; e.g., Va. Code 

Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corporation shall have as one of its purposes the purpose of creating a general 

public benefit,” and “may identify one or more specific public benefits

that it is the purpose of the benefit corporation to create. . . . This

purpose is in addition to [the purpose of engaging in any lawful business].” “ ‘Specific public benefit’ means a benefit that serves one or

more public welfare, religious, charitable, scientific, literary, or educational purposes, or other purpose or benefit beyond the strict interest of

the shareholders of the benefit corporation . . . .”); S. C. Code Ann.

§§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012

Cum. Supp.) (similar). 
 

Cite as: 573 U. S. ____ (2014) 25 

Opinion of the Court 

sued by the companies in these cases are governed by the 

laws of the States in which they were incorporated—

Pennsylvania and Oklahoma—and the laws of those 

States permit for-profit corporations to pursue “any lawful

purpose” or “act,” including the pursuit of profit in conformity with the owners’ religious principles. 15 Pa. Cons. 

Stat. §1301 (2001) (“Corporations may be incorporated 

under this subpart for any lawful purpose or purposes”);

Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]very

corporation, whether profit or not for profit” may “be

incorporated or organized . . . to conduct or promote any 

lawful business or purposes”); see also §1006(A)(3); Brief 

for State of Oklahoma as Amicus Curiae in No. 13–354. 

3 

HHS and the principal dissent make one additional

argument in an effort to show that a for-profit corporation

cannot engage in the “exercise of religion” within the 

meaning of RFRA: HHS argues that RFRA did no more

than codify this Court’s pre-Smith Free Exercise Clause 

precedents, and because none of those cases squarely held 

that a for-profit corporation has free-exercise rights, RFRA

does not confer such protection. This argument has many 

flaws. 

First, nothing in the text of RFRA as originally enacted

suggested that the statutory phrase “exercise of religion 

under the First Amendment” was meant to be tied to this 

Court’s pre-Smith interpretation of that Amendment. 

When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the First

Amendment”—not the exercise of religion as recognized

only by then-existing Supreme Court precedents. 42 

U. S. C. §2000bb–2(4) (1994 ed.). When Congress wants to

link the meaning of a statutory provision to a body of this

Court’s case law, it knows how to do so. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, 28 
 

26 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

U. S. C. §2254(d)(1) (authorizing habeas relief from a 

state-court decision that “was contrary to, or involved an 

unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court of the United

States”).

Second, if the original text of RFRA was not clear 

enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. 

That amendment deleted the prior reference to the First

Amendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principal

dissent can explain why Congress did this if it wanted to

tie RFRA coverage tightly to the specific holdings of our 

pre-Smith free-exercise cases. Moreover, as discussed, the 

amendment went further, providing that the exercise of 

religion “shall be construed in favor of a broad protection

of religious exercise, to the maximum extent permitted by

the terms of this chapter and the Constitution.” §2000cc–

3(g). It is simply not possible to read these provisions as 

restricting the concept of the “exercise of religion” to those 

practices specifically addressed in our pre-Smith decisions. 

Third, the one pre-Smith case involving the free-exercise

rights of a for-profit corporation suggests, if anything, that

for-profit corporations possess such rights. In Gallagher v. 

Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 

(1961), the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a forprofit corporation, by customers of the market, and by a 

rabbi. The Commonwealth argued that the corporation

lacked “standing” to assert a free-exercise claim,26 but not 

one member of the Court expressed agreement with that 

—————— 

26See Brief for Appellants in Gallagher, O. T. 1960 No. 11, pp. 16, 28– 

31 (arguing that corporation “has no ‘religious belief’ or ‘religious 

liberty,’ and had no standing in court to assert that its free exercise of 

religion was impaired”). 
Cite as: 573 U. S. ____ (2014) 27 

Opinion of the Court 

argument. The plurality opinion for four Justices rejected 

the First Amendment claim on the merits based on the 

reasoning in Braunfeld, and reserved decision on the 

question whether the corporation had “standing” to raise

the claim. See 366 U. S., at 631. The three dissenters, 

Justices Douglas, Brennan, and Stewart, found the law 

unconstitutional as applied to the corporation and the 

other challengers and thus implicitly recognized their 

right to assert a free-exercise claim. See id., at 642 (Brennan, J., joined by Stewart, J., dissenting); McGowan v. 

Maryland, 366 U. S. 420, 578–579 (1961) (Douglas, J.,

dissenting as to related cases including Gallagher). Finally, Justice Frankfurter’s opinion, which was joined by 

Justice Harlan, upheld the Massachusetts law on the

merits but did not question or reserve decision on the 

issue of the right of the corporation or any of the other 

challengers to be heard. See McGowan, 366 U. S., at 521– 

522. It is quite a stretch to argue that RFRA, a law enacted 

to provide very broad protection for religious liberty,

left for-profit corporations unprotected simply because in 

Gallagher—the only pre-Smith case in which the issue 

was raised—a majority of the Justices did not find it necessary to decide whether the kosher market’s corporate 

status barred it from raising a free-exercise claim.

Finally, the results would be absurd if RFRA merely 

restored this Court’s pre-Smith decisions in ossified form 

and did not allow a plaintiff to raise a RFRA claim unless 

that plaintiff fell within a category of plaintiffs one of 

whom had brought a free-exercise claim that this Court

entertained in the years before Smith. For example, we

are not aware of any pre-Smith case in which this Court 

entertained a free-exercise claim brought by a resident 

noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their

rights before Smith? 

Presumably in recognition of the weakness of this ar-
 

 

 

28 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

gument, both HHS and the principal dissent fall back on

the broader contention that the Nation lacks a tradition of 

exempting for-profit corporations from generally applicable laws. By contrast, HHS contends, statutes like Title

VII, 42 U. S. C. §2000e–19(A), expressly exempt churches 

and other nonprofit religious institutions but not for-profit

corporations. See Brief for HHS in No. 13–356, p. 26. In 

making this argument, however, HHS did not call to our

attention the fact that some federal statutes do exempt 

categories of entities that include for-profit corporations

from laws that would otherwise require these entities to

engage in activities to which they object on grounds of 

conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).27 

If Title VII and similar laws show anything, it is

that Congress speaks with specificity when it intends a

religious accommodation not to extend to for-profit 

corporations. 

—————— 

27The principal dissent points out that “the exemption codified in 

§238n(a) was not enacted until three years after RFRA’s passage.” 

Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in 

fact, “ope[n] all statutory schemes to religion-based challenges by forprofit corporations” because if it had “there would be no need for a

statute-specific, post-RFRA exemption of this sort.” Ibid. 

This argument fails to recognize that the protection provided by 

§238n(a) differs significantly from the protection provided by RFRA. 

Section 238n(a) flatly prohibits discrimination against a covered

healthcare facility for refusing to engage in certain activities related to

abortion. If a covered healthcare facility challenged such discrimination under RFRA, by contrast, the discrimination would be unlawful 

only if a court concluded, among other things, that there was a less 

restrictive means of achieving any compelling government interest. 

In addition, the dissent’s argument proves too much. Section 

238n(a) applies evenly to “any health care entity”—whether it is a

religious nonprofit entity or a for-profit entity. There is no dispute that 

RFRA protects religious nonprofit corporations, so if §238n(a) were

redundant as applied to for-profit corporations, it would be equally 

redundant as applied to nonprofits. 
Cite as: 573 U. S. ____ (2014) 29 

Opinion of the Court 

4 

Finally, HHS contends that Congress could not have

wanted RFRA to apply to for-profit corporations because it 

is difficult as a practical matter to ascertain the sincere 

“beliefs” of a corporation. HHS goes so far as to raise the 

specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such 

as IBM or General Electric.” Brief for HHS in No. 13–356, 

at 30. 

These cases, however, do not involve publicly traded 

corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA

claims. HHS has not pointed to any example of a publicly

traded corporation asserting RFRA rights, and numerous 

practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—

including institutional investors with their own set of

stakeholders—would agree to run a corporation under the

same religious beliefs seems improbable. In any event, we

have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases

before us are closely held corporations, each owned and 

controlled by members of a single family, and no one has 

disputed the sincerity of their religious beliefs.28 

HHS has also provided no evidence that the purported 

problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. On the contrary, the scope

of RLUIPA shows that Congress was confident of the 

ability of the federal courts to weed out insincere claims. 

RLUIPA applies to “institutionalized persons,” a category 

—————— 

28To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order 

to obtain an exemption for financial reasons would fail. Cf., e.g., United 

States v. Quaintance, 608 F. 3d 717, 718–719 (CA10 2010). 
 

 

30 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

that consists primarily of prisoners, and by the time of 

RLUIPA’s enactment, the propensity of some prisoners to

assert claims of dubious sincerity was well documented.29 

Nevertheless, after our decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners to

raise religious liberty claims. If Congress thought that the

federal courts were up to the job of dealing with insincere 

prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seemingly less difficult task of doing the same in corporate 

cases. And if, as HHS seems to concede, Congress wanted

RFRA to apply to nonprofit corporations, see, Reply Brief 

in No. 13–354, at 7–8, what reason is there to think that 

Congress believed that spotting insincere claims would 

be tougher in cases involving for-profits?

HHS and the principal dissent express concern about

the possibility of disputes among the owners of corporations, but that is not a problem that arises because of

RFRA or that is unique to this context. The owners of 

closely held corporations may—and sometimes do— 

disagree about the conduct of business. 1 Treatise of the 

Law of Corporations §14:11. And even if RFRA did not 

exist, the owners of a company might well have a dispute 

relating to religion. For example, some might want a

company’s stores to remain open on the Sabbath in order 

to make more money, and others might want the stores to

close for religious reasons. State corporate law provides a 

ready means for resolving any conflicts by, for example,

dictating how a corporation can establish its governing 

structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, 

§351 (2011) (providing that certificate of incorporation 

—————— 

29See, e.g., Ochs v. Thalacker, 90 F. 3d 293, 296 (CA8 1996); Green v. 

White, 525 F. Supp. 81, 83–84 (ED Mo. 1981); Abate v. Walton, 1996 

WL 5320, *5 (CA9, Jan. 5, 1996); Winters v. State, 549 N. W. 2d 819– 

820 (Iowa 1996). 
 

Cite as: 573 U. S. ____ (2014) 31 

Opinion of the Court 

may provide how “the business of the corporation shall be 

managed”). Courts will turn to that structure and the 

underlying state law in resolving disputes. 

For all these reasons, we hold that a federal regulation’s

restriction on the activities of a for-profit closely held

corporation must comply with RFRA.30 

IV 

Because RFRA applies in these cases, we must next ask 

whether the HHS contraceptive mandate “substantially 

burden[s]” the exercise of religion. 42 U. S. C. §2000bb– 

1(a). We have little trouble concluding that it does. 

—————— 

30The principal dissent attaches significance to the fact that the 

“Senate voted down [a] so-called ‘conscience amendment,’ which would

have enabled any employer or insurance provider to deny coverage 

based on its asserted religious beliefs or moral convictions.” Post, at 6. 

The dissent would evidently glean from that vote an intent by the

Senate to prohibit for-profit corporate employers from refusing to offer

contraceptive coverage for religious reasons, regardless of whether the 

contraceptive mandate could pass muster under RFRA’s standards. 

But that is not the only plausible inference from the failed amendment—or even the most likely. For one thing, the text of the amendment was “written so broadly that it would allow any employer to deny

any health service to any American for virtually any reason—not just 

for religious objections.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis 

added). Moreover, the amendment would have authorized a blanket 

exemption for religious or moral objectors; it would not have subjected 

religious-based objections to the judicial scrutiny called for by RFRA, in 

which a court must consider not only the burden of a requirement on 

religious adherents, but also the government’s interest and how narrowly tailored the requirement is. It is thus perfectly reasonable to

believe that the amendment was voted down because it extended more 

broadly than the pre-existing protections of RFRA. And in any event, 

even if a rejected amendment to a bill could be relevant in other contexts, it surely cannot be relevant here, because any “Federal statutory

law adopted after November 16, 1993 is subject to [RFRA] unless such

law explicitly excludes such application by reference to [RFRA].” 42 

U. S. C. §2000bb–3(b) (emphasis added). It is not plausible to find such

an explicit reference in the meager legislative history on which the

dissent relies. 
 

32 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

A 

As we have noted, the Hahns and Greens have a sincere 

religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS 

acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4,

may result in the destruction of an embryo. By requiring

the Hahns and Greens and their companies to arrange for 

such coverage, the HHS mandate demands that they

engage in conduct that seriously violates their religious

beliefs. 

If the Hahns and Greens and their companies do not 

yield to this demand, the economic consequences will be 

severe. If the companies continue to offer group health 

plans that do not cover the contraceptives at issue, they

will be taxed $100 per day for each affected individual. 26 

U. S. C. §4980D. For Hobby Lobby, the bill could amount 

to $1.3 million per day or about $475 million per year; for

Conestoga, the assessment could be $90,000 per day or

$33 million per year; and for Mardel, it could be $40,000 

per day or about $15 million per year. These sums are 

surely substantial.

It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether and thus

forcing their employees to obtain health insurance on one 

of the exchanges established under ACA. But if at least 

one of their full-time employees were to qualify for a subsidy on one of the government-run exchanges, this course 

would also entail substantial economic consequences. The 

companies could face penalties of $2,000 per employee

each year. §4980H. These penalties would amount to

roughly $26 million for Hobby Lobby, $1.8 million for

Conestoga, and $800,000 for Mardel. 

B 

Although these totals are high, amici supporting HHS 
Cite as: 573 U. S. ____ (2014) 33 

Opinion of the Court 

have suggested that the $2,000 per-employee penalty is 

actually less than the average cost of providing health 

insurance, see Brief for Religious Organizations 22, and 

therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to

obtain insurance in the government exchanges. We do not 

generally entertain arguments that were not raised below

and are not advanced in this Court by any party, see 

United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, 

n. 2 (1981); Bell v. Wolfish, 441 U. S. 520, 532, n. 13 

(1979); Knetsch v. United States, 364 U. S. 361, 370 (1960),

and there are strong reasons to adhere to that practice in

these cases. HHS, which presumably could have compiled 

the relevant statistics, has never made this argument—

not in its voluminous briefing or at oral argument in this 

Court nor, to our knowledge, in any of the numerous cases 

in which the issue now before us has been litigated around

the country. As things now stand, we do not even know

what the Government’s position might be with respect to 

these amici’s intensely empirical argument.31 For this 

same reason, the plaintiffs have never had an opportunity 

to respond to this novel claim that—contrary to their 

longstanding practice and that of most large employers—

they would be better off discarding their employer insurance plans altogether.

Even if we were to reach this argument, we would find it 

unpersuasive. As an initial matter, it entirely ignores the 

fact that the Hahns and Greens and their companies have

religious reasons for providing health-insurance coverage 

for their employees. Before the advent of ACA, they were

not legally compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional business 

—————— 

31 Indeed, one of HHS’s stated reasons for establishing the religious

accommodation was to “encourag[e] eligible organizations to continue to 

offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added). 
 

34 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

reasons, but also in part because their religious beliefs

govern their relations with their employees. See App. to

Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354,

at 139. 

Putting aside the religious dimension of the decision to 

provide insurance, moreover, it is far from clear that the 

net cost to the companies of providing insurance is more 

than the cost of dropping their insurance plans and paying

the ACA penalty. Health insurance is a benefit that employees value. If the companies simply eliminated that 

benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would face

a competitive disadvantage in retaining and attracting

skilled workers. See App. in No. 13–354, at 153.

The companies could attempt to make up for the elimination of a group health plan by increasing wages, but this 

would be costly. Group health insurance is generally less 

expensive than comparable individual coverage, so the

amount of the salary increase needed to fully compensate 

for the termination of insurance coverage may well exceed 

the cost to the companies of providing the insurance. In 

addition, any salary increase would have to take into 

account the fact that employees must pay income taxes on 

wages but not on the value of employer-provided health 

insurance. 26 U. S. C. §106(a). Likewise, employers can

deduct the cost of providing health insurance, see 

§162(a)(1), but apparently cannot deduct the amount of 

the penalty that they must pay if insurance is not provided; that difference also must be taken into account. 

Given these economic incentives, it is far from clear that it 

would be financially advantageous for an employer to drop 

coverage and pay the penalty.32 

—————— 

32Attempting to compensate for dropped insurance by raising wages

would also present administrative difficulties. In order to provide full 
 

Cite as: 573 U. S. ____ (2014) 35 

Opinion of the Court 

In sum, we refuse to sustain the challenged regulations

on the ground—never maintained by the Government—

that dropping insurance coverage eliminates the substantial burden that the HHS mandate imposes. We doubt 

that the Congress that enacted RFRA—or, for that matter,

ACA—would have believed it a tolerable result to put

family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans. 

C 

In taking the position that the HHS mandate does not 

impose a substantial burden on the exercise of religion, 

HHS’s main argument (echoed by the principal dissent) is

basically that the connection between what the objecting 

parties must do (provide health-insurance coverage for

four methods of contraception that may operate after the 

fertilization of an egg) and the end that they find to be

morally wrong (destruction of an embryo) is simply too 

attenuated. Brief for HHS in 13–354, pp. 31–34; post, at 

22–23. HHS and the dissent note that providing the 

coverage would not itself result in the destruction of an

embryo; that would occur only if an employee chose to take

advantage of the coverage and to use one of the four methods at issue.33 Ibid. 

—————— 

compensation for employees, the companies would have to calculate the 

value to employees of the convenience of retaining their employerprovided coverage and thus being spared the task of attempting to find

and sign up for a comparable plan on an exchange. And because some 

but not all of the companies’ employees may qualify for subsidies on an

exchange, it would be nearly impossible to calculate a salary increase 

that would accurately restore the status quo ante for all employees. 33This argument is not easy to square with the position taken by 

HHS in providing exemptions from the contraceptive mandate for 

religious employers, such as churches, that have the very same religious objections as the Hahns and Greens and their companies. The 

connection between what these religious employers would be required 
 

 

36 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

This argument dodges the question that RFRA presents

(whether the HHS mandate imposes a substantial burden 

on the ability of the objecting parties to conduct business

in accordance with their religious beliefs) and instead 

addresses a very different question that the federal courts 

have no business addressing (whether the religious belief 

asserted in a RFRA case is reasonable). The Hahns and 

Greens believe that providing the coverage demanded by 

the HHS regulations is connected to the destruction of an

embryo in a way that is sufficient to make it immoral for 

them to provide the coverage. This belief implicates a 

difficult and important question of religion and moral 

philosophy, namely, the circumstances under which it is 

wrong for a person to perform an act that is innocent in 

itself but that has the effect of enabling or facilitating the 

commission of an immoral act by another.34 Arrogating

the authority to provide a binding national answer to this 

religious and philosophical question, HHS and the princi-

—————— 

to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they find morally wrong (destruction of an embryo) is exactly the same. Nevertheless, as discussed, 

HHS and the Labor and Treasury Departments authorized the exemption from the contraceptive mandate of group health plans of certain

religious employers, and later expanded the exemption to include

certain nonprofit organizations with religious objections to contraceptive coverage. 78 Fed. Reg. 39871. When this was done, the Government made clear that its objective was to “protec[t]” these religious 

objectors “from having to contract, arrange, pay, or refer for such 

coverage.” Ibid. Those exemptions would be hard to understand if the 

plaintiffs’ objections here were not substantial. 34See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in 

Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins,

Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The

general principles governing cooperation” in wrongdoing—i.e., “physical 

activity (or its omission) by which a person assists in the evil act of

another who is the principal agent”—“present troublesome difficulties 

in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) 

(Cooperation occurs “when A helps B to accomplish an external act by

an act that is not sinful, and without approving of what B does”). 
 

 

Cite as: 573 U. S. ____ (2014) 37 

Opinion of the Court 

pal dissent in effect tell the plaintiffs that their beliefs are 

flawed. For good reason, we have repeatedly refused to

take such a step. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly and in many different contexts, we have warned

that courts must not presume to determine . . . the plausibility of a religious claim”); Hernandez v. Commissioner, 

490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v. 

Mary Elizabeth Blue Hull Memorial Presbyterian Church, 

393 U. S. 440, 450 (1969).

 Moreover, in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981), we considered 

and rejected an argument that is nearly identical to the 

one now urged by HHS and the dissent. In Thomas, a 

Jehovah’s Witness was initially employed making sheet

steel for a variety of industrial uses, but he was later 

transferred to a job making turrets for tanks. Id., at 710. 

Because he objected on religious grounds to participating

in the manufacture of weapons, he lost his job and sought 

unemployment compensation. Ruling against the employee, the state court had difficulty with the line that

the employee drew between work that he found to be consistent with his religious beliefs (helping to manufacture 

steel that was used in making weapons) and work that he

found morally objectionable (helping to make the weapons

themselves). This Court, however, held that “it is not for 

us to say that the line he drew was an unreasonable one.” 

Id., at 715.35 

Similarly, in these cases, the Hahns and Greens and

their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies

on the forbidden side of the line, and it is not for us to say

that their religious beliefs are mistaken or insubstantial.

Instead, our “narrow function . . . in this context is to 

—————— 

35The principal dissent makes no effort to reconcile its view about the 

substantial-burden requirement with our decision in Thomas. 
 

38 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

determine” whether the line drawn reflects “an honest 

conviction,” id., at 716, and there is no dispute that it 

does. 

HHS nevertheless compares these cases to decisions in

which we rejected the argument that the use of general 

tax revenue to subsidize the secular activities of religious

institutions violated the Free Exercise Clause. See Tilton 

v. Richardson, 403 U. S. 672, 689 (1971) (plurality); Board 

of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 

248–249 (1968). But in those cases, while the subsidies 

were clearly contrary to the challengers’ views on a secular issue, namely, proper church-state relations, the challengers never articulated a religious objection to the subsidies. As we put it in Tilton, they were “unable to

identify any coercion directed at the practice or exercise of

their religious beliefs.” 403 U. S., at 689 (plurality opinion); see Allen, supra, at 249 (“[A]ppellants have not contended that the New York law in any way coerces them as

individuals in the practice of their religion”). Here, in 

contrast, the plaintiffs do assert that funding the specific

contraceptive methods at issue violates their religious

beliefs, and HHS does not question their sincerity. Because the contraceptive mandate forces them to pay an

enormous sum of money—as much as $475 million per

year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious 

beliefs, the mandate clearly imposes a substantial burden

on those beliefs. 

V 

Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move 

on and decide whether HHS has shown that the mandate 

both “(1) is in furtherance of a compelling governmental 

interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. 
 

Cite as: 573 U. S. ____ (2014) 39 

Opinion of the Court 

§2000bb–1(b). 

A 

HHS asserts that the contraceptive mandate serves a

variety of important interests, but many of these are 

couched in very broad terms, such as promoting “public

health” and “gender equality.” Brief for HHS in No. 13– 

354, at 46, 49. RFRA, however, contemplates a “more

focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through 

application of the challenged law ‘to the person’—the 

particular claimant whose sincere exercise of religion is

being substantially burdened.” O’Centro, 546 U. S., at 

430–431 (quoting §2000bb–1(b)). This requires us to 

“loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions

to particular religious claimants”—in other words, to look 

to the marginal interest in enforcing the contraceptive 

mandate in these cases. O Centro, supra, at 431. 

In addition to asserting these very broadly framed

interests, HHS maintains that the mandate serves a 

compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost

sharing. See Brief for HHS in No. 13–354, at 14–15, 49; 

see Brief for HHS in No. 13–356, at 10, 48. Under our 

cases, women (and men) have a constitutional right to

obtain contraceptives, see Griswold v. Connecticut, 381 

U. S. 479, 485–486 (1965), and HHS tells us that “[s]tudies 

have demonstrated that even moderate copayments for

preventive services can deter patients from receiving those

services.” Brief for HHS in No. 13–354, at 50 (internal 

quotation marks omitted). 

The objecting parties contend that HHS has not shown 

that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that 

support that view. As we have noted, many employees— 
 

 

40 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

those covered by grandfathered plans and those who work

for employers with fewer than 50 employees—may have no

contraceptive coverage without cost sharing at all. 

HHS responds that many legal requirements have

exceptions and the existence of exceptions does not in

itself indicate that the principal interest served by a law is

not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier

consideration. In these cases, however, the interest served 

by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. 

Grandfathered plans are required “to comply with a subset 

of the Affordable Care Act’s health reform provisions” that

provide what HHS has described as “particularly significant protections.” 75 Fed. Reg. 34540 (2010). But the 

contraceptive mandate is expressly excluded from this 

subset. Ibid. 

We find it unnecessary to adjudicate this issue. We will 

assume that the interest in guaranteeing cost-free access

to the four challenged contraceptive methods is compelling 

within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS 

has shown that the contraceptive mandate is “the least

restrictive means of furthering that compelling governmental interest.” §2000bb–1(b)(2). 

B 

The least-restrictive-means standard is exceptionally

demanding, see City of Boerne, 521 U. S., at 532, and it is 

not satisfied here. HHS has not shown that it lacks other 

means of achieving its desired goal without imposing a

substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b)

(requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least 
 

Cite as: 573 U. S. ____ (2014) 41 

Opinion of the Court 

restrictive means of furthering [a] compelling governmental interest” (emphasis added)). 

The most straightforward way of doing this would be for 

the Government to assume the cost of providing the four

contraceptives at issue to any women who are unable to

obtain them under their health-insurance policies due to

their employers’ religious objections. This would certainly

be less restrictive of the plaintiffs’ religious liberty, and 

HHS has not shown, see §2000bb–1(b)(2), that this is not a

viable alternative. HHS has not provided any estimate of 

the average cost per employee of providing access to 

these contraceptives, two of which, according to the FDA,

are designed primarily for emergency use. See Birth 

Control: Medicines to Help You, online at http://

www.fda.gov/forconsumers/byaudience/forwomen/freepubli

cations/ucm313215.htm. Nor has HHS provided any 

statistics regarding the number of employees who might

be affected because they work for corporations like Hobby 

Lobby, Conestoga, and Mardel. Nor has HHS told us that 

it is unable to provide such statistics. It seems likely,

however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved

contraceptives) would be minor when compared with the

overall cost of ACA. According to one of the Congressional 

Budget Office’s most recent forecasts, ACA’s insurancecoverage provisions will cost the Federal Government 

more than $1.3 trillion through the next decade. See CBO, 

Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, April 2014, p.

2.36 If, as HHS tells us, providing all women with cost-free 

access to all FDA-approved methods of contraception is a

Government interest of the highest order, it is hard to

understand HHS’s argument that it cannot be required 

under RFRA to pay anything in order to achieve this 

—————— 

36Online at http://cbo.gov/publication/45231. 
 

42 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

important goal.

HHS contends that RFRA does not permit us to take

this option into account because “RFRA cannot be used to

require creation of entirely new programs.” Brief for HHS 

in 13–354, at 15.37 But we see nothing in RFRA that

supports this argument, and drawing the line between the 

“creation of an entirely new program” and the modification 

of an existing program (which RFRA surely allows) would 

be fraught with problems. We do not doubt that cost may 

—————— 

37 In a related argument, HHS appears to maintain that a plaintiff 

cannot prevail on a RFRA claim that seeks an exemption from a legal

obligation requiring the plaintiff to confer benefits on third parties. 

Nothing in the text of RFRA or its basic purposes supports giving the

Government an entirely free hand to impose burdens on religious

exercise so long as those burdens confer a benefit on other individuals. 

It is certainly true that in applying RFRA “courts must take adequate

account of the burdens a requested accommodation may impose on

nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) 

(applying RLUIPA). That consideration will often inform the analysis

of the Government’s compelling interest and the availability of a less

restrictive means of advancing that interest. But it could not reasonably be maintained that any burden on religious exercise, no matter how

onerous and no matter how readily the government interest could be

achieved through alternative means, is permissible under RFRA so long

as the relevant legal obligation requires the religious adherent to confer

a benefit on third parties. Otherwise, for example, the Government

could decide that all supermarkets must sell alcohol for the convenience 

of customers (and thereby exclude Muslims with religious objections

from owning supermarkets), or it could decide that all restaurants must

remain open on Saturdays to give employees an opportunity to earn 

tips (and thereby exclude Jews with religious objections from owning

restaurants). By framing any Government regulation as benefiting a 

third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering 

RFRA meaningless. In any event, our decision in these cases need not

result in any detrimental effect on any third party. As we explain, see 

infra, at 43–44, the Government can readily arrange for other methods 

of providing contraceptives, without cost sharing, to employees who are 

unable to obtain them under their health-insurance plans due to their

employers’ religious objections. 
 

Cite as: 573 U. S. ____ (2014) 43 

Opinion of the Court 

be an important factor in the least-restrictive-means 

analysis, but both RFRA and its sister statute, RLUIPA, 

may in some circumstances require the Government to 

expend additional funds to accommodate citizens’ religious 

beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter may

require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious

exercise.”). HHS’s view that RFRA can never require the 

Government to spend even a small amount reflects a 

judgment about the importance of religious liberty that 

was not shared by the Congress that enacted that law. 

In the end, however, we need not rely on the option of a 

new, government-funded program in order to conclude 

that the HHS regulations fail the least-restrictive-means 

test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring

employers to fund contraceptive methods that violate their 

religious beliefs. As we explained above, HHS has already 

established an accommodation for nonprofit organizations 

with religious objections. See supra, at 9–10, and nn. 8–9. 

Under that accommodation, the organization can selfcertify that it opposes providing coverage for particular

contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1);

26 CFR §§54.9815–2713A(a)(4), (b). If the organization 

makes such a certification, the organization’s insurance

issuer or third-party administrator must “[e]xpressly

exclude contraceptive coverage from the group health

insurance coverage provided in connection with the group

health plan” and “[p]rovide separate payments for any

contraceptive services required to be covered” without 

imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR 

§54.9815–2713A(c)(2).38 

—————— 

38HHS has concluded that insurers that insure eligible employers 
 

 

 

 

 

44 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

We do not decide today whether an approach of this type

complies with RFRA for purposes of all religious claims.39 

At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for 

the contraceptives at issue here violates their religion, and 

it serves HHS’s stated interests equally well.40 

The principal dissent identifies no reason why this 

accommodation would fail to protect the asserted needs of 

women as effectively as the contraceptive mandate, and 

there is none.41 Under the accommodation, the plaintiffs’ 

female employees would continue to receive contraceptive

coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal 

—————— 

opting out of the contraceptive mandate and that are required to pay

for contraceptive coverage under the accommodation will not experience 

an increase in costs because the “costs of providing contraceptive

coverage are balanced by cost savings from lower pregnancy-related 

costs and from improvements in women’s health.” 78 Fed. Reg. 39877.

With respect to self-insured plans, the regulations establish a mechanism for the eligible employers’ third-party administrators to obtain a 

compensating reduction in the fee paid by insurers to participate in the

federally facilitated exchanges. HHS believes that this system will not

have a material effect on the funding of the exchanges because the

“payments for contraceptive services will represent only a small portion

of total [federally facilitated exchange] user fees.” Id., at 39882; see 26 

CFR §54.9815–2713A(b)(3). 39See n. 9, supra. 40The principal dissent faults us for being “noncommital” in refusing 

to decide a case that is not before us here. Post, at 30. The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted

to address. 41 In the principal dissent’s view, the Government has not had a fair

opportunity to address this accommodation, post, at 30. n. 27, but the 

Government itself apparently believes that when it “provides an exception to a general rule for secular reasons (or for only certain religious

reasons), [it] must explain why extending a comparable exception to a

specific plaintiff for religious reasons would undermine its compelling

interests.” Brief for the United States as Amicus Curiae in Holt v. 

Hobbs, No. 13–6827, p. 10, now pending before the Court. 
 

Cite as: 573 U. S. ____ (2014) 45 

Opinion of the Court 

logistical and administrative obstacles,” post, at 28 (internal quotation marks omitted), because their employers’ 

insurers would be responsible for providing information 

and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26

CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’s

approach that would “[i]mped[e] women’s receipt of benefits by ‘requiring them to take steps to learn about, and to

sign up for, a new government funded and administered

health benefit,’” post, at 28, because the dissent would 

effectively compel religious employers to drop healthinsurance coverage altogether, leaving their employees to

find individual plans on government-run exchanges or

elsewhere. This is indeed “scarcely what Congress contemplated.” Ibid. 

C 

HHS and the principal dissent argue that a ruling in

favor of the objecting parties in these cases will lead to a

flood of religious objections regarding a wide variety of

medical procedures and drugs, such as vaccinations and 

blood transfusions, but HHS has made no effort to substantiate this prediction.42 HHS points to no evidence that 

insurance plans in existence prior to the enactment of 

ACA excluded coverage for such items. Nor has HHS 

provided evidence that any significant number of employers sought exemption, on religious grounds, from any of 

ACA’s coverage requirements other than the contraceptive 

mandate. 

It is HHS’s apparent belief that no insurance-coverage

mandate would violate RFRA—no matter how significantly 

it impinges on the religious liberties of employers—that 

would lead to intolerable consequences. Under HHS’s 

view, RFRA would permit the Government to require all 

—————— 

42Cf. 42 U. S. C. §1396s (Federal “program for distribution of pediatric vaccines” for some uninsured and underinsured children). 
 

46 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

employers to provide coverage for any medical procedure 

allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The 

owners of many closely held corporations could not in good 

conscience provide such coverage, and thus HHS would 

effectively exclude these people from full participation in 

the economic life of the Nation. RFRA was enacted to 

prevent such an outcome.

In any event, our decision in these cases is concerned 

solely with the contraceptive mandate. Our decision 

should not be understood to hold that an insurancecoverage mandate must necessarily fall if it conflicts with 

an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the

spread of infectious diseases) and may involve different 

arguments about the least restrictive means of providing 

them. 

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might 

be cloaked as religious practice to escape legal sanction. 

See post, at 32–33. Our decision today provides no such 

shield. The Government has a compelling interest in

providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial

discrimination are precisely tailored to achieve that critical goal.

HHS also raises for the first time in this Court the 

argument that applying the contraceptive mandate to forprofit employers with sincere religious objections is essential to the comprehensive health-insurance scheme that 

ACA establishes. HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, 

which we upheld in Lee despite the religious objection of

an employer, but these cases are quite different. Our 

holding in Lee turned primarily on the special problems 
Cite as: 573 U. S. ____ (2014) 47 

Opinion of the Court 

associated with a national system of taxation. We noted 

that “[t]he obligation to pay the social security tax initially 

is not fundamentally different from the obligation to pay

income taxes.” 455 U. S., at 260. Based on that premise,

we explained that it was untenable to allow individuals to

seek exemptions from taxes based on religious objections 

to particular Government expenditures: “If, for example, a

religious adherent believes war is a sin, and if a certain

percentage of the federal budget can be identified as devoted to war-related activities, such individuals would 

have a similarly valid claim to be exempt from paying that 

percentage of the income tax.” Ibid. We observed that 

“[t]he tax system could not function if denominations were

allowed to challenge the tax system because tax payments 

were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435. 

Lee was a free-exercise, not a RFRA, case, but if the 

issue in Lee were analyzed under the RFRA framework,

the fundamental point would be that there simply is no 

less restrictive alternative to the categorical requirement 

to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing taxpayers to withhold a portion of their tax obligations on 

religious grounds would lead to chaos. Recognizing 

exemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax 

revenue for use in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchase

insurance for their own employees. And contrary to the 

principal dissent’s characterization, the employers’ contributions do not necessarily funnel into “undifferentiated 

funds.” Post, at 23. The accommodation established by 

HHS requires issuers to have a mechanism by which to 

“segregate premium revenue collected from the eligible

organization from the monies used to provide payments 

for contraceptive services.” 45 CFR §147.131(c)(2)(ii). 
 

 

48 BURWELL v. HOBBY LOBBY STORES, INC. 

Opinion of the Court 

Recognizing a religious accommodation under RFRA for

particular coverage requirements, therefore, does not 

threaten the viability of ACA’s comprehensive scheme in

the way that recognizing religious objections to particular

expenditures from general tax revenues would.43 

In its final pages, the principal dissent reveals that its

fundamental objection to the claims of the plaintiffs is an 

objection to RFRA itself. The dissent worries about forcing the federal courts to apply RFRA to a host of claims

made by litigants seeking a religious exemption from 

generally applicable laws, and the dissent expresses a 

desire to keep the courts out of this business. See post, at 

32–35. In making this plea, the dissent reiterates a point 

made forcefully by the Court in Smith. 494 U. S., at 888– 

889 (applying the Sherbert test to all free-exercise claims 

“would open the prospect of constitutionally required

religious exemptions from civic obligations of almost every 

conceivable kind”). But Congress, in enacting RFRA, took 

the position that “the compelling interest test as set forth 

in prior Federal court rulings is a workable test for

striking sensible balances between religious liberty and 

competing prior governmental interests.” 42 U. S. C. 

§2000bb(a)(5). The wisdom of Congress’s judgment on this 

—————— 

43HHS highlights certain statements in the opinion in Lee that it 

regards as supporting its position in these cases. In particular, HHS

notes the statement that “[w]hen followers of a particular sect enter 

into commercial activity as a matter of choice, the limits they accept on

their own conduct as a matter of conscience and faith are not to be 

superimposed on the statutory schemes which are binding on others in 

that activity.” 455 U. S., at 261. Lee was a free exercise, not a RFRA, 

case, and the statement to which HHS points, if taken at face value, is

squarely inconsistent with the plain meaning of RFRA. Under RFRA, 

when followers of a particular religion choose to enter into commercial

activity, the Government does not have a free hand in imposing obligations that substantially burden their exercise of religion. Rather, the 

Government can impose such a burden only if the strict RFRA test is 

met. 
 

Cite as: 573 U. S. ____ (2014) 49 

Opinion of the Court 

matter is not our concern. Our responsibility is to enforce 

RFRA as written, and under the standard that RFRA 

prescribes, the HHS contraceptive mandate is unlawful. 

* * * 

The contraceptive mandate, as applied to closely held

corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First 

Amendment claim raised by Conestoga and the Hahns. 

The judgment of the Tenth Circuit in No. 13–354 is 

affirmed; the judgment of the Third Circuit in No. 13–356 

is reversed, and that case is remanded for further proceedings consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 573 U. S. ____ (2014) 1 

KENNEDY, J., concurring 

SUPREME COURT OF THE UNITED STATES 

Nos. 13–354 and 13–356 

SYLVIA BURWELL, SECRETARY OF HEALTH 

AND HUMAN SERVICES, ET AL., PETITIONERS 

13–354 v. 

HOBBY LOBBY STORES, INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
 

OF APPEALS FOR THE TENTH CIRCUIT
 

AND
 

CONESTOGA WOOD SPECIALTIES CORPORATION 

ET AL., PETITIONERS 

13–356 v. 

SYLVIA BURWELL, SECRETARY OF HEALTH 

AND HUMAN SERVICES, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
 

OF APPEALS FOR THE THIRD CIRCUIT
 

[June 30, 2014]

 JUSTICE KENNEDY, concurring. 

It seems to me appropriate, in joining the Court’s opinion, to add these few remarks. At the outset it should be 

said that the Court’s opinion does not have the breadth 

and sweep ascribed to it by the respectful and powerful 

dissent. The Court and the dissent disagree on the proper 

interpretation of the Religious Freedom and Restoration 

Act of 1993 (RFRA), but do agree on the purpose of that 

statute. 42 U. S. C. §2000bb et seq. It is to ensure that 

interests in religious freedom are protected. Ante, at 5–6; 

post, at 8–9 (GINSBURG, J., dissenting).

In our constitutional tradition, freedom means that all 

persons have the right to believe or strive to believe in a 

divine creator and a divine law. For those who choose this 
 

 

2 BURWELL v. HOBBY LOBBY STORES, INC. 

KENNEDY, J., concurring 

course, free exercise is essential in preserving their own 

dignity and in striving for a self-definition shaped by their 

religious precepts. Free exercise in this sense implicates

more than just freedom of belief. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). It means, too, the right

to express those beliefs and to establish one’s religious 

(or nonreligious) self-definition in the political, civic, and 

economic life of our larger community. But in a complex 

society and an era of pervasive governmental regulation,

defining the proper realm for free exercise can be difficult.

In these cases the plaintiffs deem it necessary to exercise

their religious beliefs within the context of their own

closely held, for-profit corporations. They claim protection

under RFRA, the federal statute discussed with care and 

in detail in the Court’s opinion.

As the Court notes, under our precedents, RFRA imposes

a “‘stringent test.’” Ante, at 6 (quoting City of Boerne v. 

Flores, 521 U. S. 507, 533 (1997)). The Government must 

demonstrate that the application of a substantial burden

to a person’s exercise of religion “(1) is in furtherance of a 

compelling governmental interest; and (2) is the least 

restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).

As to RFRA’s first requirement, the Department of

Health and Human Services (HHS) makes the case that 

the mandate serves the Government’s compelling interest 

in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. Ante, at 

39; see, e.g., Brief for HHS in No. 13–354, pp. 14–15.

There are many medical conditions for which pregnancy is 

contraindicated. See, e.g., id., at 47. It is important to

confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a

legitimate and compelling interest in the health of female

employees. Ante, at 40. 
Cite as: 573 U. S. ____ (2014) 3 

KENNEDY, J., concurring 

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. 9, 

43–44. 

The means the Government chose is the imposition of a

direct mandate on the employers in these cases. Ante, at 

8–9. 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. See ante, at 9–10, and n. 9, 43–44. The accommodation works by requiring insurance companies to 

cover, without cost sharing, contraception coverage for

female employees who wish it. That accommodation 

equally furthers the Government’s interest but does not

impinge on the plaintiffs’ religious beliefs. See ante, at 44. 

On this record and as explained by the Court, the Government has not met its burden of showing that it cannot

accommodate the plaintiffs’ similar religious objections 

under this established framework. RFRA is inconsistent with the insistence of an agency such as HHS on

distinguishing between different religious believers—burdening one while accommodating the other—when it

may treat both equally by offering both of them the same 

accommodation. 

The parties who were the plaintiffs in the District

Courts argue that the Government could pay for the 

methods that are found objectionable. Brief for Respond-
 

 

4 BURWELL v. HOBBY LOBBY STORES, INC. 

KENNEDY, J., concurring 

ents in No. 13–354, p. 58. In discussing this alternative, 

the Court does not address whether the proper response to 

a legitimate claim for freedom in the health care arena is 

for the Government to create an additional program. 

Ante, at 41–43. The Court properly does not resolve 

whether one freedom should be protected by creating 

incentives for additional government constraints. In these 

cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a 

whole new program or burden on the Government. As the 

Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s 

interest, and in fact the mechanism for doing so is already 

in place. Ante, at 43–44. 

“[T]he American community is today, as it long has

been, a rich mosaic of religious faiths.” Town of Greece v. 

Galloway, 572 U. S. ___, ___ (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. Yet neither may that same exercise unduly 

restrict other persons, such as employees, in protecting 

their own interests, interests the law deems compelling. 

In these cases the means to reconcile those two priorities 

are at hand in the existing accommodation the Government has designed, identified, and used for circumstances

closely parallel to those presented here. RFRA requires

the Government to use this less restrictive means. As the 

Court explains, this existing model, designed precisely for 

this problem, might well suffice to distinguish the instant 

cases from many others in which it is more difficult and 

expensive to accommodate a governmental program to

countless religious claims based on an alleged statutory 

right of free exercise. Ante, at 45–46. 

For these reasons and others put forth by the Court, I 

join its opinion. 
_________________ 

_________________ 

 

Cite as: 573 U. S. ____ (2014) 1 

GINSBURG, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 13–354 and 13–356 

SYLVIA BURWELL, SECRETARY OF HEALTH 

AND HUMAN SERVICES, ET AL., PETITIONERS 

13–354 v. 

HOBBY LOBBY STORES, INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
 

OF APPEALS FOR THE TENTH CIRCUIT
 

AND
 

CONESTOGA WOOD SPECIALTIES CORPORATION 

ET AL., PETITIONERS 

13–356 v. 

SYLVIA BURWELL, SECRETARY OF HEALTH 

AND HUMAN SERVICES, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
 

OF APPEALS FOR THE THIRD CIRCUIT
 

[June 30, 2014] 

JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR 

joins, and with whom JUSTICE BREYER and JUSTICE 

KAGAN join as to all but Part III–C–1, dissenting. 

In a decision of startling breadth, the Court holds that 

commercial enterprises, including corporations, along with

partnerships and sole proprietorships, can opt out of any 

law (saving only tax laws) they judge incompatible with

their sincerely held religious beliefs. See ante, at 16–49. 

Compelling governmental interests in uniform compliance 

with the law, and disadvantages that religion-based optouts impose on others, hold no sway, the Court decides, at 

least when there is a “less restrictive alternative.” And 

such an alternative, the Court suggests, there always will

be whenever, in lieu of tolling an enterprise claiming a 
 

2 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

religion-based exemption, the government, i.e., the general 

public, can pick up the tab. See ante, at 41–43.1 

The Court does not pretend that the First Amendment’s 

Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that 

score. See infra, at 6–8. Instead, the Court holds that 

Congress, in the Religious Freedom Restoration Act of 

1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the 

extraordinary religion-based exemptions today’s decision 

endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no 

matter the impact that accommodation may have on third

parties who do not share the corporation owners’ religious 

faith—in these cases, thousands of women employed by 

Hobby Lobby and Conestoga or dependents of persons 

those corporations employ. Persuaded that Congress

enacted RFRA to serve a far less radical purpose, and 

mindful of the havoc the Court’s judgment can introduce, I 

dissent. 

I 

“The ability of women to participate equally in the 

economic and social life of the Nation has been facilitated 

by their ability to control their reproductive lives.” 

Planned Parenthood of Southeastern Pa. v. Casey, 505 

U. S. 833, 856 (1992). Congress acted on that understand-

—————— 

1The Court insists it has held none of these things, for another less

restrictive alternative is at hand: extending an existing accommodation, currently limited to religious nonprofit organizations, to encompass commercial enterprises. See ante, at 3–4. With that accommodation extended, the Court asserts, “women would still be entitled to all 

[Food and Drug Administration]-approved contraceptives without cost 

sharing.” Ante, at 4. In the end, however, the Court is not so sure. In 

stark contrast to the Court’s initial emphasis on this accommodation, it

ultimately declines to decide whether the highlighted accommodation is

even lawful. See ante, at 44 (“We do not decide today whether an

approach of this type complies with RFRA . . . .”). 
Cite as: 573 U. S. ____ (2014) 3 

GINSBURG, J., dissenting 

ing when, as part of a nationwide insurance program

intended to be comprehensive, it called for coverage of

preventive care responsive to women’s needs. Carrying

out Congress’ direction, the Department of Health and

Human Services (HHS), in consultation with public health

experts, promulgated regulations requiring group health 

plans to cover all forms of contraception approved by the 

Food and Drug Administration (FDA). The genesis of this

coverage should enlighten the Court’s resolution of these 

cases. 

A 

The Affordable Care Act (ACA), in its initial form, specified three categories of preventive care that health plans 

must cover at no added cost to the plan participant or 

beneficiary.2 Particular services were to be recommended 

by the U. S. Preventive Services Task Force, an independent panel of experts. The scheme had a large gap, however; it left out preventive services that “many women’s

health advocates and medical professionals believe are

critically important.” 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this oversight, Senator 

Barbara Mikulski introduced the Women’s Health 

Amendment, which added to the ACA’s minimum coverage

requirements a new category of preventive services specific

to women’s health. 

Women paid significantly more than men for preventive

care, the amendment’s proponents noted; in fact, cost 

—————— 

2See 42 U. S. C. §300gg–13(a)(1)–(3) (group health plans must provide coverage, without cost sharing, for (1) certain “evidence-based 

items or services” recommended by the U. S. Preventive Services Task

Force; (2) immunizations recommended by an advisory committee of the

Centers for Disease Control and Prevention; and (3) “with respect to 

infants, children, and adolescents, evidence-informed preventive care

and screenings provided for in the comprehensive guidelines supported

by the Health Resources and Services Administration”). 
 

 

4 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

barriers operated to block many women from obtaining 

needed care at all. See, e.g., id., at 29070 (statement of

Sen. Feinstein) (“Women of childbearing age spend 68

percent more in out-of-pocket health care costs than 

men.”); id., at 29302 (statement of Sen. Mikulski) (“copayments are [often] so high that [women] avoid getting 

[preventive and screening services] in the first place”). 

And increased access to contraceptive services, the sponsors comprehended, would yield important public health

gains. See, e.g., id., at 29768 (statement of Sen. Durbin) 

(“This bill will expand health insurance coverage to the 

vast majority of [the 17 million women of reproductive age

in the United States who are uninsured] . . . . This expanded access will reduce unintended pregnancies.”). 

As altered by the Women’s Health Amendment’s passage, the ACA requires new insurance plans to include 

coverage without cost sharing of “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and

Services Administration [(HRSA)],” a unit of HHS. 42 

U. S. C. §300gg–13(a)(4). Thus charged, the HRSA developed recommendations in consultation with the Institute

of Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012).3 

The IOM convened a group of independent experts, including “specialists in disease prevention [and] women’s 

health”; those experts prepared a report evaluating the 

efficacy of a number of preventive services. IOM, Clinical 

Prevention Services for Women: Closing the Gaps 2 (2011) 

(hereinafter IOM Report). Consistent with the findings of 

“[n]umerous health professional associations” and other 

organizations, the IOM experts determined that preven-

—————— 

3The IOM is an arm of the National Academy of Sciences, an organization Congress established “for the explicit purpose of furnishing 

advice to the Government.” Public Citizen v. Department of Justice, 

491 U. S. 440, 460, n. 11 (1989) (internal quotation marks omitted). 
 

Cite as: 573 U. S. ____ (2014) 5 

GINSBURG, J., dissenting 

tive coverage should include the “full range” of FDAapproved contraceptive methods. Id., at 10. See also id., 

at 102–110. 

In making that recommendation, the IOM’s report 

expressed concerns similar to those voiced by congressional proponents of the Women’s Health Amendment. The 

report noted the disproportionate burden women carried 

for comprehensive health services and the adverse health

consequences of excluding contraception from preventive

care available to employees without cost sharing. See, 

e.g., id., at 19 (“[W]omen are consistently more likely than

men to report a wide range of cost-related barriers to

receiving . . . medical tests and treatments and to filling 

prescriptions for themselves and their families.”); id., at 

103–104, 107 (pregnancy may be contraindicated for 

women with certain medical conditions, for example, some

congenital heart diseases, pulmonary hypertension, and 

Marfan syndrome, and contraceptives may be used to

reduce risk of endometrial cancer, among other serious

medical conditions); id., at 103 (women with unintended 

pregnancies are more likely to experience depression and 

anxiety, and their children face “increased odds of preterm

birth and low birth weight”).

In line with the IOM’s suggestions, the HRSA adopted

guidelines recommending coverage of “[a]ll [FDA-]

approved contraceptive methods, sterilization procedures, 

and patient education and counseling for all women with

reproductive capacity.”4 Thereafter, HHS, the Department of Labor, and the Department of Treasury promulgated regulations requiring group health plans to include 

coverage of the contraceptive services recommended in the 

—————— 

4HRSA, HHS, Women’s Preventive Services Guidelines, available at 

http://www.hrsa.gov/womensguidelines/ (all Internet materials as 

visited June 27, 2014, and available in Clerk of Court’s case file), 

reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. 

See also 77 Fed. Reg. 8725–8726 (2012). 
 

6 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

HRSA guidelines, subject to certain exceptions, described 

infra, at 25–27.5 This opinion refers to these regulations

as the contraceptive coverage requirement. 

B 

While the Women’s Health Amendment succeeded, a 

countermove proved unavailing. The Senate voted down 

the so-called “conscience amendment,” which would have 

enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moral

convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., 

at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That 

amendment, Senator Mikulski observed, would have “pu[t] 

the personal opinion of employers and insurers over the 

practice of medicine.” Id., at S1127 (Feb. 29, 2012). Rejecting the “conscience amendment,” Congress left health

care decisions—including the choice among contraceptive 

methods—in the hands of women, with the aid of their 

health care providers. 

II 

Any First Amendment Free Exercise Clause claim Hobby 

Lobby or Conestoga7 might assert is foreclosed by this 

Court’s decision in Employment Div., Dept. of Human 

Resources of Ore. v. Smith, 494 U. S. 872 (1990). In Smith, 

two members of the Native American Church were dis-

—————— 

5 45 CFR §147.130(a)(1)(iv) (2013) (HHS); 29 CFR §2590.715–

2713(a)(1)(iv) (2013) (Labor); 26 CFR §54.9815–2713(a)(1)(iv) (2013)

(Treasury). 6Separating moral convictions from religious beliefs would be of questionable legitimacy. See Welsh v. United States, 398 U. S. 333, 357–358 

(1970) (Harlan, J., concurring in result). 7As the Court explains, see ante, at 11–16, these cases arise from two 

separate lawsuits, one filed by Hobby Lobby, its affiliated business

(Mardel), and the family that operates these businesses (the Greens); 

the other filed by Conestoga and the family that owns and controls that

business (the Hahns). Unless otherwise specified, this opinion refers to

the respective groups of plaintiffs as Hobby Lobby and Conestoga. 
Cite as: 573 U. S. ____ (2014) 7 

GINSBURG, J., dissenting 

missed from their jobs and denied unemployment benefits

because they ingested peyote at, and as an essential element of, a religious ceremony. Oregon law forbade the

consumption of peyote, and this Court, relying on that

prohibition, rejected the employees’ claim that the denial 

of unemployment benefits violated their free exercise

rights. The First Amendment is not offended, Smith held, 

when “prohibiting the exercise of religion . . . is not the

object of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid 

provision.” Id., at 878; see id., at 878–879 (“an individual’s religious beliefs [do not] excuse him from compliance 

with an otherwise valid law prohibiting conduct that the 

State is free to regulate”). The ACA’s contraceptive coverage requirement applies generally, it is “otherwise valid,” 

it trains on women’s well being, not on the exercise 

of religion, and any effect it has on such exercise is

incidental. 

 Even if Smith did not control, the Free Exercise Clause 

would not require the exemption Hobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the Court has clarified, must not significantly 

impinge on the interests of third parties.8 

—————— 

8See Wisconsin v. Yoder, 406 U. S. 205, 230 (1972) (“This case, of 

course, is not one in which any harm to the physical or mental health of

the child or to the public safety, peace, order, or welfare has been

demonstrated or may be properly inferred.”); Estate of Thornton v. 

Caldor, Inc., 472 U. S. 703 (1985) (invalidating state statute requiring 

employers to accommodate an employee’s Sabbath observance where 

that statute failed to take into account the burden such an accommodation would impose on the employer or other employees). Notably, in

construing the Religious Land Use and Institutionalized Persons Act of

2000 (RLUIPA), 42 U. S. C. §2000cc et seq., the Court has cautioned 

that “adequate account” must be taken of “the burdens a requested 

accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 

544 U. S. 709, 720 (2005); see id., at 722 (“an accommodation must be

measured so that it does not override other significant interests”). A 
 

8 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

The exemption sought by Hobby Lobby and Conestoga 

would override significant interests of the corporations’ 

employees and covered dependents. It would deny legions

of women who do not hold their employers’ beliefs access

to contraceptive coverage that the ACA would otherwise 

secure. See Catholic Charities of Sacramento, Inc. v. 

Superior Court, 32 Cal. 4th 527, 565, 85 P. 3d 67, 93 

(2004) (“We are unaware of any decision in which . . . [the

U. S. Supreme Court] has exempted a religious objector 

from the operation of a neutral, generally applicable law

despite the recognition that the requested exemption

would detrimentally affect the rights of third parties.”). In 

sum, with respect to free exercise claims no less than free 

speech claims, “‘[y]our right to swing your arms ends just

where the other man’s nose begins.’” Chafee, Freedom of 

Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919). 

III
 

A 

Lacking a tenable claim under the Free Exercise Clause,

Hobby Lobby and Conestoga rely on RFRA, a statute 

instructing that “[g]overnment shall not substantially

burden a person’s exercise of religion even if the burden 

results from a rule of general applicability” unless the

government shows that application of the burden is “the 

least restrictive means” to further a “compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b)(2). In 

RFRA, Congress “adopt[ed] a statutory rule comparable to 

the constitutional rule rejected in Smith.” Gonzales v. O 

Centro Espírita Beneficente União do Vegetal, 546 U. S. 

418, 424 (2006).

RFRA’s purpose is specific and written into the statute

itself. The Act was crafted to “restore the compelling 

—————— 

balanced approach is all the more in order when the Free Exercise

Clause itself is at stake, not a statute designed to promote accommodation to religious beliefs and practices. 
 

 

Cite as: 573 U. S. ____ (2014) 9 

GINSBURG, J., dissenting 

interest test as set forth in Sherbert v. Verner, 374 U. S. 

398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 

(1972) and to guarantee its application in all cases where

free exercise of religion is substantially burdened.” 

§2000bb(b)(1).9 See also §2000bb(a)(5) (“[T]he compelling 

interest test as set forth in prior Federal court rulings is

a workable test for striking sensible balances between

religious liberty and competing prior governmental interests.”); ante, at 48 (agreeing that the pre-Smith compelling interest test is “workable” and “strike[s] sensible 

balances”).

The legislative history is correspondingly emphatic on 

RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993) 

(hereinafter Senate Report) (RFRA’s purpose was “only to

overturn the Supreme Court’s decision in Smith,” not to 

“unsettle other areas of the law.”); 139 Cong. Rec. 26178

(1993) (statement of Sen. Kennedy) (RFRA was “designed 

to restore the compelling interest test for deciding free 

exercise claims.”). In line with this restorative purpose, 

Congress expected courts considering RFRA claims to

“look to free exercise cases decided prior to Smith for 

guidance.” Senate Report 8. See also H. R. Rep. No. 103–

88, pp. 6–7 (1993) (hereinafter House Report) (same). In 

short, the Act reinstates the law as it was prior to Smith, 

without “creat[ing] . . . new rights for any religious practice or for any potential litigant.” 139 Cong. Rec. 26178

(statement of Sen. Kennedy). Given the Act’s moderate 

purpose, it is hardly surprising that RFRA’s enactment in

1993 provoked little controversy. See Brief for Senator 

Murray et al. as Amici Curiae 8 (hereinafter Senators 

—————— 

9Under 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. S. 872, 894 (1990) (O’Connor, J., concurring in 

judgment). 
 

10 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

Brief) (RFRA was approved by a 97-to-3 vote in the Senate 

and a voice vote in the House of Representatives). 

B 

Despite these authoritative indications, the Court sees 

RFRA as a bold initiative departing from, rather than 

restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 

17, 25–27. To support its conception of RFRA as a measure detached from this Court’s decisions, one that sets a 

new course, the Court points first to the Religious Land

Use and Institutionalized Persons Act of 2000 (RLUIPA),

42 U. S. C. §2000cc et seq., which altered RFRA’s definition of the term “exercise of religion.” RFRA, as originally

enacted, defined that term to mean “the exercise of religion under the First Amendment to the Constitution.”

§2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by 

RLUIPA, RFRA’s definition now includes “any exercise of 

religion, whether or not compelled by, or central to, a

system of religious belief.” §2000bb–2(4) (2012 ed.) (crossreferencing §2000cc–5). That definitional change, according to the Court, reflects “an obvious effort to effect a

complete separation from First Amendment case law.” 

Ante, at 7. 

The Court’s reading is not plausible. RLUIPA’s alteration clarifies that courts should not question the centrality

of a particular religious exercise. But the amendment in 

no way suggests that Congress meant to expand the class

of entities qualified to mount religious accommodation 

claims, nor does it relieve courts of the obligation to inquire whether a government action substantially burdens

a religious exercise. See Rasul v. Myers, 563 F. 3d 527, 

535 (CADC 2009) (Brown, J., concurring) (“There is no

doubt that RLUIPA’s drafters, in changing the definition

of ‘exercise of religion,’ wanted to broaden the scope of the

kinds of practices protected by RFRA, not increase the 

universe of individuals protected by RFRA.”); H. R. Rep. 
Cite as: 573 U. S. ____ (2014) 11 

GINSBURG, J., dissenting 

No. 106–219, p. 30 (1999). See also Gilardi v. United 

States Dept. of Health and Human Servs., 733 F. 3d 1208, 

1211 (CADC 2013) (RFRA, as amended, “provides us with

no helpful definition of ‘exercise of religion.’”); Henderson 

v. Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The

[RLUIPA] amendments did not alter RFRA’s basic prohibition that the ‘[g]overnment shall not substantially burden a person’s exercise of religion.’”).10 

Next, the Court highlights RFRA’s requirement that the

government, if its action substantially burdens a person’s

religious observance, must demonstrate that it chose the

least restrictive means for furthering a compelling interest. “[B]y imposing a least-restrictive-means test,” the

Court suggests, RFRA “went beyond what was required by 

our pre-Smith decisions.” Ante, at 17, n. 18 (citing City of 

Boerne v. Flores, 521 U. S. 507 (1997)). See also ante, at 6, 

n. 3. But as RFRA’s statements of purpose and legislative

history make clear, Congress intended only to restore, not 

to scrap or alter, the balancing test as this Court had

applied it pre-Smith. See supra, at 8–9. See also Senate 

Report 9 (RFRA’s “compelling interest test generally 

should not be construed more stringently or more leniently

than it was prior to Smith.”); House Report 7 (same).

The Congress that passed RFRA correctly read this 

Court’s pre-Smith case law as including within the “compelling interest test” a “least restrictive means” requirement. See, e.g., Senate Report 5 (“Where [a substantial] 

burden is placed upon the free exercise of religion, the

Court ruled [in Sherbert], the Government must demon-

—————— 

10RLUIPA, the Court notes, includes a provision directing that “[t]his

chapter [i.e., RLUIPA] shall be construed in favor of a broad protection 

of religious exercise, to the maximum extent permitted by the terms of

[the Act] and the Constitution.” 42 U. S. C. §2000cc–3(g); see ante, at 

6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of religion,” as RLUIPA does, but contains no omnibus rule of construction

governing the statute in its entirety. 
 

 

 

12 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

strate that it is the least restrictive means to achieve a 

compelling governmental interest.”). And the view that 

the pre-Smith test included a “least restrictive means” 

requirement had been aired in testimony before the Senate Judiciary Committee by experts on religious freedom.

See, e.g., Hearing on S. 2969 before the Senate Committee

on the Judiciary, 102d Cong., 2d Sess., 78–79 (1993) 

(statement of Prof. Douglas Laycock). 

Our decision in City of Boerne, it is true, states that the 

least restrictive means requirement “was not used in the 

pre-Smith jurisprudence RFRA purported to codify.” See 

ante, at 6, n. 3, 17, n. 18. As just indicated, however, that

statement does not accurately convey the Court’s preSmith jurisprudence. See Sherbert, 374 U. S., at 407 (“[I]t 

would plainly be incumbent upon the [government] to 

demonstrate that no alternative forms of regulation would 

combat [the problem] without infringing First Amendment

rights.”); Thomas v. Review Bd. of Indiana Employment 

Security Div., 450 U. S. 707, 718 (1981) (“The state may 

justify an inroad on religious liberty by showing that it is

the least restrictive means of achieving some compelling 

state interest.”). See also Berg, The New Attacks on Religious Freedom Legislation and Why They Are Wrong, 21 

Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court 

erroneously said that the least restrictive means test ‘was

not used in the pre-Smith jurisprudence.’”).11 

C 

With RFRA’s restorative purpose in mind, I turn to the 

—————— 

11The Court points out that I joined the majority opinion in City of 

Boerne and did not then question the statement that “least restrictive

means . . . was not used [pre-Smith].” Ante, at 17, n. 18. Concerning

that observation, I remind my colleagues of Justice Jackson’s sage

comment: “I see no reason why I should be consciously wrong today 

because I was unconsciously wrong yesterday.” Massachusetts v. 

United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion). 
 

Cite as: 573 U. S. ____ (2014) 13 

GINSBURG, J., dissenting 

Act’s application to the instant lawsuits. That task, in 

view of the positions taken by the Court, requires consideration of several questions, each potentially dispositive of

Hobby Lobby’s and Conestoga’s claims: Do for-profit corporations rank among “person[s]” who “exercise . . . religion”? Assuming that they do, does the contraceptive

coverage requirement “substantially burden” their religious exercise? If so, is the requirement “in furtherance of

a compelling government interest”? And last, does the 

requirement represent the least restrictive means for 

furthering that interest? 

Misguided by its errant premise that RFRA moved 

beyond the pre-Smith case law, the Court falters at each 

step of its analysis. 

1 

RFRA’s compelling interest test, as noted, see supra, at 

8, applies to government actions that “substantially burden a person’s exercise of religion.” 42 U. S. C. §2000bb– 

1(a) (emphasis added). This reference, the Court submits, 

incorporates the definition of “person” found in the Dictionary Act, 1 U. S. C. §1, which extends to “corporations, 

companies, associations, firms, partnerships, societies, and 

joint stock companies, as well as individuals.” See ante, at 

19–20. The Dictionary Act’s definition, however, controls 

only where “context” does not “indicat[e] otherwise.” §1.

Here, context does so indicate. RFRA speaks of “a person’s 

exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis 

added). See also §§2000bb–2(4), 2000cc–5(7)(a).12 Whether 

—————— 

12As earlier explained, see supra, at 10–11, RLUIPA’s amendment of 

the definition of “exercise of religion” does not bear the weight the 

Court places on it. Moreover, it is passing strange to attribute to

RLUIPA any purpose to cover entities other than “religious assembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at 

26. That law applies to land-use regulation. §2000cc(a)(1). To permit

commercial enterprises to challenge zoning and other land-use regula-
 

 

 

 

14 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

a corporation qualifies as a “person” capable of exercising religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” 

Gilardi, 733 F. 3d, at 1212. There is in that case law no 

support for the notion that free exercise rights pertain to

for-profit corporations. 

Until this litigation, no decision of this Court recognized

a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under

the Free Exercise Clause or RFRA.13 The absence of such 

precedent is just what one would expect, for the exercise of

religion is characteristic of natural persons, not artificial 

legal entities. As Chief Justice Marshall observed nearly

two centuries ago, a corporation is “an artificial being,

invisible, intangible, and existing only in contemplation of 

law.” Trustees of Dartmouth College v. Woodward, 4 

Wheat. 518, 636 (1819). Corporations, Justice Stevens

more recently reminded, “have no consciences, no beliefs, 

no feelings, no thoughts, no desires.” Citizens United v. 

Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part).

The First Amendment’s free exercise protections, the 

—————— 

tions under RLUIPA would “dramatically expand the statute’s reach” 

and deeply intrude on local prerogatives, contrary to Congress’ intent. 

Brief for National League of Cities et al. as Amici Curiae 26. 13The Court regards Gallagher v. Crown Kosher Super Market of 

Mass., Inc., 366 U. S. 617 (1961), as “suggest[ing] . . . that for-profit

corporations possess [free-exercise] rights.” Ante, at 26–27. See also 

ante, at 21, n. 21. The suggestion is barely there. True, one of the five 

challengers to the Sunday closing law assailed in Gallagher was a 

corporation owned by four Orthodox Jews. The other challengers were

human individuals, not artificial, law-created entities, so there was no 

need to determine whether the corporation could institute the litigation. Accordingly, the plurality stated it could pretermit the question

“whether appellees ha[d] standing” because Braunfeld v. Brown, 366 

U. S. 599 (1961), which upheld a similar closing law, was fatal to their

claim on the merits. 366 U. S., at 631. 
 

Cite as: 573 U. S. ____ (2014) 15 

GINSBURG, J., dissenting 

Court has indeed recognized, shelter churches and other

nonprofit religion-based organizations.14 “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community,”

and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” 

Corporation of Presiding Bishop of Church of Jesus Christ 

of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) 

(Brennan, J., concurring in judgment). The Court’s “special solicitude to the rights of religious organizations,” 

Hosanna-Tabor Evangelical Lutheran Church and School 

v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), however, is just that. No such solicitude is traditional for commercial organizations.15 Indeed, until today, religious 

—————— 

14See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School 

v. EEOC, 565 U. S. ___ (2012); Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418 (2006); Church of Lukumi Babalu 

Aye, Inc. v. Hialeah, 508 U. S. 520 (1993); Jimmy Swaggart Ministries 

v. Board of Equalization of Cal., 493 U. S. 378 (1990). 15Typically, Congress has accorded to organizations religious in character religion-based exemptions from statutes of general application. 

E.g., 42 U. S. C. §2000e–1(a) (Title VII exemption from prohibition

against employment discrimination based on religion for “a religious 

corporation, association, educational institution, or society with respect

to the employment of individuals of a particular religion to perform

work connected with the carrying on . . . of its activities”); 42 U. S. C. 

§12113(d)(1) (parallel exemption in Americans With Disabilities Act of

1990). It can scarcely be maintained that RFRA enlarges these exemptions to allow Hobby Lobby and Conestoga to hire only persons who 

share the religious beliefs of the Greens or Hahns. Nor does the Court 

suggest otherwise. Cf. ante, at 28. 

The Court does identify two statutory exemptions it reads to cover 

for-profit corporations, 42 U. S. C. §§300a–7(b)(2) and 238n(a), and

infers from them that “Congress speaks with specificity when it intends

a religious accommodation not to extend to for-profit corporations,” 

ante, at 28. The Court’s inference is unwarranted. The exemptions the 

Court cites cover certain medical personnel who object to performing or

assisting with abortions. Cf. ante, at 28, n. 27 (“the protection provided 

by §238n(a) differs significantly from the protection provided by 
 

 

16 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483 

U. S., at 337.16 

The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to

the same religious faith. Not so of for-profit corporations. 

Workers who sustain the operations of those corporations

commonly are not drawn from one religious community. 

Indeed, by law, no religion-based criterion can restrict the 

—————— 

RFRA”). Notably, the Court does not assert that these exemptions have

in fact been afforded to for-profit corporations. See §238n(c) (“health 

care entity” covered by exemption is a term defined to include “an

individual physician, a postgraduate physician training program, and a 

participant in a program of training in the health professions”); Tozzi, 

Whither Free Exercise: Employment Division v. Smith and the Rebirth 

of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. 

Catholic Legal Studies 269, 296, n. 133 (2009) (“Catholic physicians, 

but not necessarily hospitals, . . . may be able to invoke [§238n(a)]

. . . .”); cf. S. 137, 113th Cong., 1st Sess. (2013) (as introduced) (Abortion 

Non-Discrimination Act of 2013, which would amend the definition of 

“health care entity” in §238n to include “hospital[s],” “health insurance

plan[s],” and other health care facilities). These provisions are revealing in a way that detracts from one of the Court’s main arguments. 

They show that Congress is not content to rest on the Dictionary Act

when it wishes to ensure that particular entities are among those

eligible for a religious accommodation. 

Moreover, the exemption codified in §238n(a) was not enacted until 

three years after RFRA’s passage. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, §515, 110 Stat. 1321–245. If, as 

the Court believes, RFRA opened all statutory schemes to religionbased challenges by for-profit corporations, there would be no need for a

statute-specific, post-RFRA exemption of this sort. 16That is not to say that a category of plaintiffs, such as resident

aliens, may bring RFRA claims only if this Court expressly “addressed

their [free-exercise] rights before Smith.” Ante, at 27. Continuing with

the Court’s example, resident aliens, unlike corporations, are flesh-andblood individuals who plainly count as persons sheltered by the First 

Amendment, see United States v. Verdugo-Urquidez, 494 U. S. 259, 271 

(1990) (citing Bridges v. Wixon, 326 U. S. 135, 148 (1945)), and 

a fortiori, RFRA. 
 

Cite as: 573 U. S. ____ (2014) 17 

GINSBURG, J., dissenting 

work force of for-profit corporations. See 42 U. S. C. 

§§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title 

VII requires reasonable accommodation of an employee’s

religious exercise, but such accommodation must not come 

“at the expense of other[ employees]”). The distinction 

between a community made up of believers in the same 

religion and one embracing persons of diverse beliefs, clear

as it is, constantly escapes the Court’s attention.17 One 

can only wonder why the Court shuts this key difference 

from sight.

Reading RFRA, as the Court does, to require extension 

of religion-based exemptions to for-profit corporations 

surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to

initiate a change so huge, a clarion statement to that

effect likely would have been made in the legislation. See 

Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 

468 (2001) (Congress does not “hide elephants in mouseholes”). The text of RFRA makes no such statement and 

the legislative history does not so much as mention forprofit corporations. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114, 1169 (CA10 2013) (Briscoe, C. J.,

concurring in part and dissenting in part) (legislative

record lacks “any suggestion that Congress foresaw, let 

alone intended that, RFRA would cover for-profit corporations”). See also Senators Brief 10–13 (none of the 

—————— 

17 I part ways with JUSTICE KENNEDY on the context relevant here. 

He sees it as the employers’ “exercise [of] their religious beliefs within 

the context of their own closely held, for-profit corporations.” Ante, at 2 

(concurring opinion). See also ante, at 45–46 (opinion of the Court)

(similarly concentrating on religious faith of employers without reference to the different beliefs and liberty interests of employees). I see as 

the relevant context the employers’ asserted right to exercise religion 

within a nationwide program designed to protect against health hazards employees who do not subscribe to their employers’ religious 

beliefs. 
 

 

18 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

cases cited in House or Senate Judiciary Committee

reports accompanying RFRA, or mentioned during floor 

speeches, recognized the free exercise rights of for-profit

corporations).

The Court notes that for-profit corporations may support charitable causes and use their funds for religious 

ends, and therefore questions the distinction between such 

corporations and religious nonprofit organizations. See 

ante, at 20–25. See also ante, at 3 (KENNEDY, J., concurring) (criticizing the Government for “distinguishing between different religious believers—burdening one while

accommodating the other—when it may treat both equally

by offering both of them the same accommodation”).18 

Again, the Court forgets that religious organizations exist

to serve a community of believers. 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”). To reiterate, 

“for-profit corporations are different from religious non-

—————— 

18According to the Court, the Government “concedes” that “nonprofit

corporation[s]” are protected by RFRA. Ante, at 19. See also ante, at 

20, 24, 30. That is not an accurate description of the Government’s 

position, which encompasses only “churches,” “religious institutions,” 

and “religious non-profits.” Brief for Respondents in No. 13–356, p. 28 

(emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRA

incorporates the longstanding and common-sense distinction between 

religious organizations, which sometimes have been accorded accommodations under generally applicable laws in recognition of their 

accepted religious character, and for-profit corporations organized to do 

business in the commercial world.”). 
 

 

 

Cite as: 573 U. S. ____ (2014) 19 

GINSBURG, J., dissenting 

profits in that they use labor to make a profit, rather than

to perpetuate [the] religious value[s] [shared by a community of believers].” Gilardi, 733 F. 3d, at 1242 (Edwards, 

J., concurring in part and dissenting in part) (emphasis 

deleted).

Citing Braunfeld v. Brown, 366 U. S. 599 (1961), the

Court questions why, if “a sole proprietorship that seeks to 

make a profit may assert a free-exercise claim, [Hobby

Lobby and Conestoga] can’t . . . do the same?” Ante, at 22 

(footnote omitted). See also ante, at 16–17. But even 

accepting, arguendo, the premise that unincorporated

business enterprises may gain religious accommodations 

under the Free Exercise Clause, the Court’s conclusion is 

unsound. In a sole proprietorship, the business and its 

owner are one and the same. By incorporating a business,

however, an individual separates herself from the entity

and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only

when it serves the interest of those who control the corporation. In any event, Braunfeld is hardly impressive

authority for the entitlement Hobby Lobby and Conestoga

seek. The free exercise claim asserted there was promptly 

rejected on the merits.

The Court’s determination that RFRA extends to forprofit corporations is bound to have untoward effects.

Although the Court attempts to cabin its language to 

closely held corporations, its logic extends to corporations 

of any size, public or private.19 Little doubt that RFRA 

—————— 

19The Court does not even begin to explain how one might go about 

ascertaining the religious scruples of a corporation where shares are 

sold to the public. No need to speculate on that, the Court says, for “it

seems unlikely” that large corporations “will often assert RFRA 

claims.” Ante, at 29. Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not 

diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is 
 

20 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

claims will proliferate, for the Court’s expansive notion of

corporate personhood—combined with its other errors 

in construing RFRA—invites for-profit entities to seek 

religion-based exemptions from regulations they deem 

offensive to their faith. 

2 

Even if Hobby Lobby and Conestoga were deemed RFRA

“person[s],” to gain an exemption, they must demonstrate

that the contraceptive coverage requirement “substantially burden[s] [their] exercise of religion.” 42 U. S. C. 

§2000bb–1(a). Congress no doubt meant the modifier

“substantially” to carry weight. In the original draft of

RFRA, the word “burden” appeared unmodified. The word 

“substantially” was inserted pursuant to a clarifying

amendment offered by Senators Kennedy and Hatch. See 

—————— 

hardly the only enterprise of sizable scale that is family owned or

closely held. For example, the family-owned candy giant Mars, Inc., 

takes in $33 billion in revenues and has some 72,000 employees, and 

closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons. See Forbes, America’s Largest Private Companies 2013, available at http://www.forbes.com/

largest-private-companies/. 

Nor does the Court offer any instruction on how to resolve the disputes that may crop up among corporate owners over religious values 

and accommodations. The Court is satisfied that “[s]tate corporate law 

provides a ready means for resolving any conflicts,” ante, at 30, but the 

authorities cited in support of that proposition are hardly helpful. See 

Del. Code Ann., Tit. 8, §351 (2011) (certificates of incorporation may

specify how the business is managed); 1 J. Cox & T. Hazen, Treatise on 

the Law of Corporations §3:2 (3d ed. 2010) (section entitled “Selecting

the state of incorporation”); id., §14:11 (observing that “[d]espite the

frequency of dissension and deadlock in close corporations, in some

states neither legislatures nor courts have provided satisfactory solutions”). And even if a dispute settlement mechanism is in place, how is

the arbiter of a religion-based intracorporate controversy to resolve the 

disagreement, given this Court’s instruction that “courts have no 

business addressing [whether an asserted religious belief] is substantial,” ante, at 36? 
 

 

Cite as: 573 U. S. ____ (2014) 21 

GINSBURG, J., dissenting 

139 Cong. Rec. 26180. In proposing the amendment, 

Senator Kennedy stated that RFRA, in accord with the

Court’s pre-Smith case law, “does not require the Government to justify every action that has some effect on religious exercise.” Ibid. 

The Court barely pauses to inquire whether any burden

imposed by the contraceptive coverage requirement is 

substantial. Instead, it rests on the Greens’ and Hahns’ 

“belie[f] that providing the coverage demanded by the 

HHS regulations is connected to the destruction of an

embryo in a way that is sufficient to make it immoral for

them to provide the coverage.” Ante, at 36.20 I agree with 

the Court that the Green and Hahn families’ religious

convictions regarding contraception are sincerely held. 

See Thomas, 450 U. S., at 715 (courts are not to question

where an individual “dr[aws] the line” in defining which

practices run afoul of her religious beliefs). See also 42 

U. S. C. §§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A).21 

But those beliefs, however deeply held, do not suffice to 

sustain a RFRA claim. RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’] 

—————— 

20The Court dismisses the argument, advanced by some amici, that 

the $2,000-per-employee tax charged to certain employers that fail to 

provide health insurance is less than the average cost of offering health 

insurance, noting that the Government has not provided the statistics

that could support such an argument. See ante, at 32–34. The Court 

overlooks, however, that it is not the Government’s obligation to prove

that an asserted burden is insubstantial. Instead, it is incumbent upon

plaintiffs to demonstrate, in support of a RFRA claim, the substantiality of the alleged burden. 21The Court levels a criticism that is as wrongheaded as can be. In 

no way does the dissent “tell the plaintiffs that their beliefs are flawed.” 

Ante, at 37. Right or wrong in this domain is a judgment no Member of

this Court, or any civil court, is authorized or equipped to make. What 

the Court must decide is not “the plausibility of a religious claim,” ante, 

at 37 (internal quotation marks omitted), but whether accommodating

that claim risks depriving others of rights accorded them by the laws of 

the United States. See supra, at 7–8; infra, at 27. 
 

 

22 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

beliefs are sincere and of a religious nature,” which a court 

must accept as true, and the “legal conclusion . . . that

[plaintiffs’] religious exercise is substantially burdened,” 

an inquiry the court must undertake. Kaemmerling v. 

Lappin, 553 F. 3d 669, 679 (CADC 2008). 

That distinction is a facet of the pre-Smith jurisprudence RFRA incorporates. Bowen v. Roy, 476 U. S. 693 

(1986), is instructive. There, the Court rejected a free

exercise challenge to the Government’s use of a Native

American child’s Social Security number for purposes of 

administering benefit programs. Without questioning the

sincerity of the father’s religious belief that “use of [his 

daughter’s Social Security] number may harm [her] spirit,”

the Court concluded that the Government’s internal 

uses of that number “place[d] [no] restriction on what [the

father] may believe or what he may do.” Id., at 699. 

Recognizing that the father’s “religious views may not 

accept” the position that the challenged uses concerned

only the Government’s internal affairs, the Court explained that “for the adjudication of a constitutional claim,

the Constitution, rather than an individual’s religion,

must supply the frame of reference.” Id., at 700–701, n. 6. 

See also Hernandez v. Commissioner, 490 U. S. 680, 699 

(1989) (distinguishing between, on the one hand, “question[s] [of] the centrality of particular beliefs or practices

to a faith, or the validity of particular litigants’ interpretations of those creeds,” and, on the other, “whether the 

alleged burden imposed [by the challenged government

action] is a substantial one”). Inattentive to this guidance,

today’s decision elides entirely the distinction between the 

sincerity of a challenger’s religious belief and the substantiality of the burden placed on the challenger.

Undertaking the inquiry that the Court forgoes, I would 

conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The re-
Cite as: 573 U. S. ____ (2014) 23 

GINSBURG, J., dissenting 

quirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find

objectionable. Instead, it calls on the companies covered 

by the requirement to direct money into undifferentiated 

funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply 

with the ACA, see supra, at 3–6, must offer contraceptive

coverage without cost sharing, just as they must cover an

array of other preventive services.

Importantly, the decisions whether to claim benefits

under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in

consultation with their health care providers. Should an 

employee of Hobby Lobby or Conestoga share the religious

beliefs of the Greens and Hahns, she is of course under no 

compulsion to use the contraceptives in question. But 

“[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have

a hip replaced—is in any meaningful sense [her employer’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 

865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that 

Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by

independent decisionmakers (the woman and her health

counselor) standing between the challenged government 

action and the religious exercise claimed to be infringed. 

Any decision to use contraceptives made by a woman

covered under Hobby Lobby’s or Conestoga’s plan will not 

be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she

consults. 

3 

Even if one were to conclude that Hobby Lobby and 

Conestoga meet the substantial burden requirement, the 

Government has shown that the contraceptive coverage 
 

 

24 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

for which the ACA provides furthers compelling interests

in public health and women’s well being. Those interests 

are concrete, specific, and demonstrated by a wealth of 

empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their 

children. See IOM Report 102–107. The coverage helps

safeguard the health of women for whom pregnancy may 

be hazardous, even life threatening. See Brief for American College of Obstetricians and Gynecologists et al. as 

Amici Curiae 14–15. And the mandate secures benefits 

wholly unrelated to pregnancy, preventing certain cancers, 

menstrual disorders, and pelvic pain. Brief for Ovarian 

Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 

16; 78 Fed. Reg. 39872 (2013); IOM Report 107.

That Hobby Lobby and Conestoga resist coverage for 

only 4 of the 20 FDA-approved contraceptives does not 

lessen these compelling interests. Notably, the corporations exclude intrauterine devices (IUDs), devices significantly more effective, and significantly more expensive 

than other contraceptive methods. See id., at 105.22 

Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to

exclude from their group health plans all forms of contraceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby 

Lobby acknowledged that his “argument . . . would apply 

just as well if the employer said ‘no contraceptives’” (internal quotation marks added)).

Perhaps the gravity of the interests at stake has led the 

—————— 

22 IUDs, which are among the most reliable forms of contraception,

generally cost women more than $1,000 when the expenses of the office

visit and insertion procedure are taken into account. See Eisenberg, 

McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible 

Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59,

S60 (2013). See also Winner et al., Effectiveness of Long-Acting Reversible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012). 
Cite as: 573 U. S. ____ (2014) 25 

GINSBURG, J., dissenting 

Court to assume, for purposes of its RFRA analysis, that 

the compelling interest criterion is met in these cases. See 

ante, at 40.23 It bears note in this regard that the cost of

an IUD is nearly equivalent to a month’s full-time pay for 

workers earning the minimum wage, Brief for Guttmacher

Institute et al. as Amici Curiae 16; that almost one-third 

of women would change their contraceptive method if costs

were not a factor, Frost & Darroch, Factors Associated 

With Contraceptive Choice and Inconsistent Method Use,

United States, 2004, 40 Perspectives on Sexual & Reproductive Health 94, 98 (2008); and that only one-fourth of 

women who request an IUD actually have one inserted 

after finding out how expensive it would be, Gariepy,

Simon, Patel, Creinin, & Schwarz, The Impact of Out-ofPocket Expense on IUD Utilization Among Women With 

Private Insurance, 84 Contraception e39, e40 (2011). See 

also Eisenberg, supra, at S60 (recent study found that

women who face out-of-pocket IUD costs in excess of $50 

were “11-times less likely to obtain an IUD than women 

who had to pay less than $50”); Postlethwaite, Trussell, 

Zoolakis, Shabear, & Petitti, A Comparison of Contraceptive Procurement Pre- and Post-Benefit Change, 76 Contraception 360, 361–362 (2007) (when one health system 

eliminated patient cost sharing for IUDs, use of this form 

of contraception more than doubled).

Stepping back from its assumption that compelling

interests support the contraceptive coverage requirement,

the Court notes that small employers and grandfathered 

plans are not subject to the requirement. If there is a 

compelling interest in contraceptive coverage, the Court 

—————— 

23Although the Court’s opinion makes this assumption grudgingly, 

see ante, at 39–40, one Member of the majority recognizes, without 

reservation, that “the [contraceptive coverage] mandate serves the

Government’s compelling interest in providing insurance coverage that

is necessary to protect the health of female employees.” Ante, at 2 

(opinion of KENNEDY, J.). 
 

26 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

suggests, Congress would not have created these exclusions. See ante, at 39–40. 

Federal statutes often include exemptions for small

employers, and such provisions have never been held to 

undermine the interests served by these statutes. See, 

e.g., Family and Medical Leave Act of 1993, 29 U. S. C.

§2611(4)(A)(i) (applicable to employers with 50 or more

employees); Age Discrimination in Employment Act of 

1967, 29 U. S. C. §630(b) (originally exempting employers

with fewer than 50 employees, 81 Stat. 605, the statute 

now governs employers with 20 or more employees); Americans With Disabilities Act, 42 U. S. C. §12111(5)(A) (applicable to employers with 15 or more employees); Title

VII, 42 U. S. C. §2000e(b) (originally exempting employers 

with fewer than 25 employees, see Arbaugh v. Y & H 

Corp., 546 U. S. 500, 505, n. 2 (2006), the statute now 

governs employers with 15 or more employees). 

The ACA’s grandfathering provision, 42 U. S. C. §18011,

allows a phasing-in period for compliance with a number

of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. See 

45 CFR §147.140(g). Hobby Lobby’s own situation is 

illustrative. By the time this litigation commenced, Hobby 

Lobby did not have grandfathered status. Asked why by

the District Court, Hobby Lobby’s counsel explained that 

the “grandfathering requirements mean that you can’t 

make a whole menu of changes to your plan that involve 

things like the amount of co-pays, the amount of coinsurance, deductibles, that sort of thing.” App. in No. 13– 

354, pp. 39–40. Counsel acknowledged that, “just because

of economic realities, our plan has to shift over time. I 

mean, insurance plans, as everyone knows, shif[t] over 

time.” Id., at 40.24 The percentage of employees in grand-

—————— 

24Hobby Lobby’s amicus National Religious Broadcasters similarly 
Cite as: 573 U. S. ____ (2014) 27 

GINSBURG, J., dissenting 

fathered plans is steadily declining, having dropped from 

56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family 

Foundation & Health Research & Educ. Trust, Employer

Benefits 2013 Annual Survey 7, 196. In short, far from 

ranking as a categorical exemption, the grandfathering 

provision is “temporary, intended to be a means for gradually transitioning employers into mandatory coverage.” 

Gilardi, 733 F. 3d, at 1241 (Edwards, J., concurring in

part and dissenting in part).

The Court ultimately acknowledges a critical point: 

RFRA’s application “must take adequate account of the 

burdens a requested accommodation may impose on nonbeneficiaries.” Ante, at 42, n. 37 (quoting Cutter v. Wilkinson, 544 U. S. 709, 720 (2005); emphasis added). No 

tradition, and no prior decision under RFRA, allows a

religion-based exemption when the accommodation would 

be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect. Cf. 

supra, at 7–8; Prince v. Massachusetts, 321 U. S. 158, 177 

(1944) (Jackson, J., dissenting) (“[The] limitations which of 

necessity bound religious freedom . . . begin to operate

whenever activities begin to affect or collide with liberties

of others or of the public.”). 

4 

After assuming the existence of compelling government

interests, the Court holds that the contraceptive coverage 

requirement fails to satisfy RFRA’s least restrictive means 

test. But the Government has shown that there is no less 

restrictive, equally effective means that would both (1) 

satisfy the challengers’ religious objections to providing 

—————— 

states that, “[g]iven the nature of employers’ needs to meet changing

economic and staffing circumstances, and to adjust insurance coverage

accordingly, the actual benefit of the ‘grandfather’ exclusion is de 

minimis and transitory at best.” Brief for National Religious Broadcasters as Amicus Curiae in No. 13–354, p. 28. 
 

28 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

insurance coverage for certain contraceptives (which they

believe cause abortions); and (2) carry out the objective of 

the ACA’s contraceptive coverage requirement, to ensure

that women employees receive, at no cost to them, the 

preventive care needed to safeguard their health and well

being. A “least restrictive means” cannot require employees to relinquish benefits accorded them by federal law in

order to ensure that their commercial employers can

adhere unreservedly to their religious tenets. See supra, 

at 7–8, 27.25 

Then let the government pay (rather than the employees 

who do not share their employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court 

asserts, “would be for the Government to assume the cost 

of providing . . . contraceptives . . . to any women who are 

unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Ante, at 

41. The ACA, however, requires coverage of preventive 

services through the existing employer-based system of 

health insurance “so that [employees] face minimal logistical and administrative obstacles.” 78 Fed. Reg. 39888. 

Impeding women’s receipt of benefits “by requiring them 

to take steps to learn about, and to sign up for, a new 

[government funded and administered] health benefit” 

was scarcely what Congress contemplated. Ibid. Moreover, Title X of the Public Health Service Act, 42 U. S. C. 

§300 et seq., “is the nation’s only dedicated source of federal 

—————— 

25As the Court made clear in Cutter, the government’s license to 

grant religion-based exemptions from generally applicable laws is 

constrained by the Establishment Clause. 544 U. S., at 720–722. “[W]e

are a cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U. S., at 606, a “rich mosaic of 

religious faiths,” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) 

(KAGAN, J., dissenting) (slip op., at 15). Consequently, one person’s

right to free exercise must be kept in harmony with the rights of her

fellow citizens, and “some religious practices [must] yield to the common good.” United States v. Lee, 455 U. S. 252, 259 (1982). 
 

Cite as: 573 U. S. ____ (2014) 29 

GINSBURG, J., dissenting 

funding for safety net family planning services.” Brief 

for National Health Law Program et al. as Amici Curiae 

23. “Safety net programs like Title X are not designed to

absorb the unmet needs of . . . insured individuals.” Id., at 

24. Note, too, that Congress declined to write into law the

preferential treatment Hobby Lobby and Conestoga describe as a less restrictive alternative. See supra, at 6. 

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely 

held religious belief is offended by health coverage of 

vaccines, or paying the minimum wage, see Tony and 

Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 

290, 303 (1985), or according women equal pay for substantially similar work, see Dole v. Shenandoah Baptist 

Church, 899 F. 2d 1389, 1392 (CA4 1990)? Does it rank as 

a less restrictive alternative to require the government to

provide the money or benefit to which the employer has 

a religion-based objection?26 Because the Court cannot 

easily answer that question, it proposes something else: 

Extension to commercial enterprises of the accommodation 

already afforded to nonprofit religion-based organizations.

See ante, at 3–4, 9–10, 43–45. “At a minimum,” according

to the Court, such an approach would not “impinge on

[Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at 

44. I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that 

exist to serve a community of believers, solicitude never

before accorded to commercial enterprises comprising

employees of diverse faiths. See supra, at 14–17. 

Ultimately, the Court hedges on its proposal to align forprofit enterprises with nonprofit religion-based organiza-

—————— 

26Cf. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666 

(2004) (in context of First Amendment Speech Clause challenge to a 

content-based speech restriction, courts must determine “whether the 

challenged regulation is the least restrictive means among available, 

effective alternatives” (emphasis added)). 
 

 

30 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

tions. “We do not decide today whether [the] approach

[the opinion advances] complies with RFRA for purposes of 

all religious claims.” Ante, at 44. Counsel for Hobby 

Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed alternative was acceptable,27 counsel responded: “We haven’t been offered 

that accommodation, so we haven’t had to decide what 

kind of objection, if any, we would make to that.” Tr. of 

Oral Arg. 86–87. 

Conestoga suggests that, if its employees had to acquire 

and pay for the contraceptives (to which the corporation

objects) on their own, a tax credit would qualify as a less

restrictive alternative. See Brief for Petitioners in No. 13– 

356, p. 64. A tax credit, of course, is one variety of “let the

government pay.” In addition to departing from the existing employer-based system of health insurance, Conestoga’s alternative would require a woman to reach into her 

own pocket in the first instance, and it would do nothing

for the woman too poor to be aided by a tax credit. 

In sum, in view of what Congress sought to accomplish, 

—————— 

27On brief, Hobby Lobby and Conestoga barely addressed the extension solution, which would bracket commercial enterprises with nonprofit religion-based organizations for religious accommodations purposes. The hesitation is understandable, for challenges to the adequacy 

of the accommodation accorded religious nonprofit organizations are 

currently sub judice. See, e.g., Little Sisters of the Poor Home for the 

Aged v. Sebelius, ___ F. Supp. 2d ___, 2013 WL 6839900 (Colo., Dec. 27,

2013), injunction pending appeal granted, 571 U. S. ___ (2014). At 

another point in today’s decision, the Court refuses to consider an

argument neither “raised below [nor] advanced in this Court by any

party,” giving Hobby Lobby and Conestoga “[no] opportunity to respond

to [that] novel claim.” Ante, at 33. Yet the Court is content to decide 

this case (and this case only) on the ground that HHS could make an

accommodation never suggested in the parties’ presentations. RFRA 

cannot sensibly be read to “requir[e] the government to . . . refute each 

and every conceivable alternative regulation,” United States v. Wilgus, 

638 F. 3d 1274, 1289 (CA10 2011), especially where the alternative on

which the Court seizes was not pressed by any challenger. 
 

 

 

Cite as: 573 U. S. ____ (2014) 31 

GINSBURG, J., dissenting 

i.e., comprehensive preventive care for women furnished

through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded. 

IV 

Among the pathmarking pre-Smith decisions RFRA 

preserved is United States v. Lee, 455 U. S. 252 (1982).

Lee, a sole proprietor engaged in farming and carpentry, 

was a member of the Old Order Amish. He sincerely 

believed that withholding Social Security taxes from his 

employees or paying the employer’s share of such taxes 

would violate the Amish faith. This Court held that, 

although the obligations imposed by the Social Security

system conflicted with Lee’s religious beliefs, the burden

was not unconstitutional. Id., at 260–261. See also id., at 

258 (recognizing the important governmental interest in

providing a “nationwide . . . comprehensive insurance 

system with a variety of benefits available to all participants, with costs shared by employers and employees”).28 

The Government urges that Lee should control the challenges brought by Hobby Lobby and Conestoga. See Brief 

for Respondents in No. 13–356, p. 18. In contrast, today’s 

Court dismisses Lee as a tax case. See ante, at 46–47. 

Indeed, it was a tax case and the Court in Lee homed in on 

“[t]he difficulty in attempting to accommodate religious

beliefs in the area of taxation.” 455 U. S., at 259. 

 But the Lee Court made two key points one cannot 

confine to tax cases. “When followers of a particular sect

enter into commercial activity as a matter of choice,” the

Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be 

—————— 

28As a sole proprietor, Lee was subject to personal liability for violating the law of general application he opposed. His claim to a religionbased exemption would have been even thinner had he conducted his 

business as a corporation, thus avoiding personal liability. 
 

 

32 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

superimposed on statutory schemes which are binding on 

others in that activity.” Id., at 261. The statutory scheme

of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged 

in the same trade or business as the corporate challengers 

here, Hobby Lobby and Conestoga. Further, the Court 

recognized in Lee that allowing a religion-based exemption 

to a commercial employer would “operat[e] to impose the 

employer’s religious faith on the employees.” Ibid.29 No 

doubt the Greens and Hahns and all who share their 

beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed 

on employees who hold other beliefs. Working for Hobby 

Lobby or Conestoga, in other words, should not deprive

employees of the preventive care available to workers at 

the shop next door,30 at least in the absence of directions 

from the Legislature or Administration to do so. 

Why should decisions of this order be made by Congress

or the regulatory authority, and not this Court? Hobby

Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally 

applicable laws on the basis of their religious beliefs. See, 

e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 

—————— 

29Congress amended the Social Security Act in response to Lee. The 

amended statute permits Amish sole proprietors and partnerships (but

not Amish-owned corporations) to obtain an exemption from the obligation to pay Social Security taxes only for employees who are coreligionists and who likewise seek an exemption and agree to give up

their Social Security benefits. See 26 U. S. C. §3127(a)(2), (b)(1). Thus, 

employers with sincere religious beliefs have no right to a religionbased exemption that would deprive employees of Social Security 

benefits without the employee’s consent—an exemption analogous to

the one Hobby Lobby and Conestoga seek here. 30Cf. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 

U. S. 290, 299 (1985) (disallowing religion-based exemption that “would 

undoubtedly give [the commercial enterprise seeking the exemption] 

and similar organizations an advantage over their competitors”). 
Cite as: 573 U. S. ____ (2014) 33 

GINSBURG, J., dissenting 

941, 945 (SC 1966) (owner of restaurant chain refused to 

serve black patrons based on his religious beliefs opposing 

racial integration), aff ’d in relevant part and rev’d in part 

on other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and 

modified on other grounds, 390 U. S. 400 (1968); In re 

Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn.

1985) (born-again Christians who owned closely held, forprofit health clubs believed that the Bible proscribed

hiring or retaining an “individua[l] living with but not

married to a person of the opposite sex,” “a young, single 

woman working without her father’s consent or a married 

woman working without her husband’s consent,” and any 

person “antagonistic to the Bible,” including “fornicators

and homosexuals” (internal quotation marks omitted)), 

appeal dismissed, 478 U. S. 1015 (1986); Elane Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 

309 P. 3d 53 (for-profit photography business owned by a

husband and wife refused to photograph a lesbian couple’s

commitment ceremony based on the religious beliefs of the

company’s owners), cert. denied, 572 U. S. ___ (2014). 

Would RFRA require exemptions in cases of this ilk? And 

if not, how does the Court divine which religious beliefs 

are worthy of accommodation, and which are not? Isn’t 

the Court disarmed from making such a judgment given

its recognition that “courts must not presume to determine 

. . . the plausibility of a religious claim”? Ante, at 37. 

Would the exemption the Court holds RFRA demands

for employers with religiously grounded objections to the

use of certain contraceptives extend to employers with

religiously grounded objections to blood transfusions 

(Jehovah’s Witnesses); antidepressants (Scientologists); 

medications derived from pigs, including anesthesia, 

intravenous fluids, and pills coated with gelatin (certain 

Muslims, Jews, and Hindus); and vaccinations (Christian 
 

 

34 BURWELL v. HOBBY LOBBY STORES, INC. 

GINSBURG, J., dissenting 

Scientists, among others)?31 According to counsel for 

Hobby Lobby, “each one of these cases . . . would have to 

be evaluated on its own . . . apply[ing] the compelling 

interest-least restrictive alternative test.” Tr. of Oral Arg. 

6. Not much help there for the lower courts bound by

today’s decision. 

The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely 

with the contraceptive mandate. Our decision should not 

be understood to hold that an insurance-coverage mandate

must necessarily fall if it conflicts with an employer’s

religious beliefs. Other coverage requirements, such as 

immunizations, may be supported by different interests 

(for example, the need to combat the spread of infectious

diseases) and may involve different arguments about the 

least restrictive means of providing them.” Ante, at 46. 

But the Court has assumed, for RFRA purposes, that the 

interest in women’s health and well being is compelling 

and has come up with no means adequate to serve that 

interest, the one motivating Congress to adopt the Women’s Health Amendment. 

There is an overriding interest, I believe, in keeping the 

courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 

(Stevens, J., concurring in judgment), or the sincerity with

which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy 

of accommodation could be “perceived as favoring one

religion over another,” the very “risk the Establishment

Clause was designed to preclude.” Ibid. The Court, I fear, 

—————— 

31Religious objections to immunization programs are not hypothetical. See Phillips v. New York, ___ F. Supp. 2d ___, 2014 WL 2547584 

(EDNY, June 5, 2014) (dismissing free exercise challenges to New 

York’s vaccination practices); Liberty Counsel, Compulsory Vaccinations Threaten Religious Freedom (2007), available at http://www.lc.org/

media/9980/attachments/memo_vaccination.pdf. 
 

 

Cite as: 573 U. S. ____ (2014) 35 

GINSBURG, J., dissenting 

has ventured into a minefield, cf. Spencer v. World Vision, 

Inc., 633 F. 3d 723, 730 (CA9 2010) (O’Scannlain, J., concurring), by its immoderate reading of RFRA. I would 

confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily 

in carrying out that religious purpose,” and not “engaged

. . . substantially in the exchange of goods or services for 

money beyond nominal amounts.” See id., at 748 (Kleinfeld, J., concurring). 

* * * 

For the reasons stated, I would reverse the judgment of

the Court of Appeals for the Tenth Circuit and affirm the 

judgment of the Court of Appeals for the Third Circuit. 
 

_________________ 

_________________ 

Cite as: 573 U. S. ____ (2014) 1 

BREYER and KAGAN, JJ., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 13–354 and 13–356 

SYLVIA BURWELL, SECRETARY OF HEALTH 

AND HUMAN SERVICES, ET AL., PETITIONERS 

13–354 v.

HOBBY LOBBY STORES, INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
 

OF APPEALS FOR THE TENTH CIRCUIT
 

AND
 

CONESTOGA WOOD SPECIALTIES CORPORATION 

ET AL., PETITIONERS 

13–356 v.

SYLVIA BURWELL, SECRETARY OF HEALTH 

AND HUMAN SERVICES, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
 

OF APPEALS FOR THE THIRD CIRCUIT
 

[June 30, 2014] 

JUSTICE BREYER and JUSTICE KAGAN, dissenting. 

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.