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Closely Held Conscience: Corporate Personhood in the Post–Hobby Lobby World

By Sean Nadel

This Note seeks to reframe scholarly criticism of Hobby Lobby by evaluating the case in the context of the evolving doctrine of corporate personhood and, specifically, the Obama Administration’s recent regulations that cabin the decision by implementing a new federal definition of “closely held corporations.” This Note suggests that, although problematic in certain regards, Hobby Lobby does not represent the return of Lochner. Indeed, the innovation of Hobby Lobby is not its interpretation of RFRA or the Free Exercise clause, but rather its extension of standing under RFRA to corporate parties. Accordingly, the concerns over Hobby Lobby are better articulated in the realm of corporate personhood rather than in the debate surrounding the First Amendment, making a focus on “Free Exercise Lochnerism” an ill-fitting mode of analysis. Moreover, by examining the progressive response to Hobby Lobby, epitomized by the resulting Department of Health and Human Services (HHS) regulations, the advantages of viewing the decision in terms of corporate personhood will become apparent. Part II of this Note examines the events precipitating Hobby Lobby, the decision in Hobby Lobby itself, and the debate surrounding and subsequent implementation of the resulting HHS regulations, which set the most comprehensive federal definition to date of closely held corporations. Part III critiques the HHS regulations by pointing to several problems, which both undermine the efficacy and goals of the regulation itself and pose precedential issues for the treatment of corporations in other contexts. Particularly, Part III comments that the post–Hobby Lobby effort to protect reproductive rights has undermined Hobby Lobby’s powerful language about corporate personhood, which could be used to advance corporate social responsibility, a key move for many progressive causes like environmentalism and workers’ rights. Part IV suggests an alternative to the current regulations that relies on the internal sincerity-testing model of RFRA, which evaluates whether the belief professed by plaintiff is authentic; this could prove to be less problematic than the current regime.

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