The threshold issue in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius is whether any plaintiff’s free exercise of religion is substantially burdened within the meaning of the Religious Freedom Restoration Act.
On that issue, the government’s argument is a shell game. Only the individuals have religious-liberty rights; only the corporations are regulated. And more: Even the individuals have no rights when they act or refuse to act as directors, officers, or managers of the corporation. Not only are the individuals separate persons from the corporation, but the individuals are divided into additional separate persons, depending on the capacity in which they act. This is formalism in the extreme.
Whatever one thinks about the corporations, the individual plaintiffs are clearly exercising their religion. The government appears to believe that these individuals forfeited their religious-liberty rights with respect to the business when they incorporated the business, and therefore forfeited any right not to pay for emergency contraception and IUDs when the business grew to more than fifty employees.
Congress left a clear and explicit record that the public meaning of RFRA covers for-profit corporations and their owners.
Of course, as regular readers know, reverse veil piercing would also stop the government "shell game."