The Yale Law Journal


Hobby Lobby and the Dictionary Act

15 Jun 2014

Before the end of this month, the Supreme Court will decide Burwell v. Hobby Lobby Stores, Inc.1 and in so doing will determine whether the Religious Freedom and Restoration Act (RFRA) exempts from the Affordable Care Act’s (ACA) contraception mandate closely held, for-profit companies whose owners oppose contraception on religious grounds.2 RFRA states that “[the] Government shall not substantially burden a person’s exercise of religion.”3 A central issue in the case is whether corporate entities are “persons” covered by RFRA. That is, does RFRA extend religious freedoms to for-profit corporations?

The debate over how best to answer this questionhas largely overlooked the opportunity the case presents for the Court to resolve a longstanding problem of statutory interpretation4: how courts should determine when to apply the U.S. Code’s Dictionary Act.5 The Dictionary Act, enacted in 1871, instructs courts to apply to all federal statutes definitions of certain common words (including “person”) and basic rules of grammatical construction (such as the rule that plural words include the singular) “unless context indicates otherwise.”6 The Act’s legislative history suggests that its purpose was “to avoid prolixity and tautology in drawing statutes and to prevent doubt and embarrassment in their construction.”7 However, in line with general trends in statutory interpretation,8 courts have applied the Act inconsistently for the past century.9 The courts’ characterizations of the Dictionary Act have ranged from a tool of last resort10 to a presumptive guide.11

The Dictionary Act states that “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”12 RFRA does not contain an intra-statute definition of person that would override this definition. Of course, the Dictionary Act is not the only tool that courts can, or should, use to interpret ambiguous text. Other options, which have been deployed by the Tenth Circuit and other federal courts considering the implications of RFRA for the ACA’s contraception mandate, include RFRA’s legislative history13 and case law concerning religious exemptions under the Free Exercise Clause,14 to which RFRA responded.15 Three of the five circuits to consider the question posed in Hobby Lobby—the Sixth,16 the Seventh,17 and the Tenth18—grappled with the Dictionary Act, while two circuits—the Third19 and the District of Columbia20—avoided it.

Because the circuit courts have used a full range of approaches in applying the Dictionary Act to RFRA’s use of the term “person,” litigation over RFRA’s relationship to the ACA is an especially apt vehicle for resolving how courts should determine whether the Dictionary Act applies generally.

Of the cases to interrogate how RFRA and the ACA interact, the Tenth Circuit’s Hobby Lobby opinion was the most deferential to the Dictionary Act.21 Judge Cowen, writing for the majority, described the Dictionary Act as the “first resource”22 in determining the meaning of “person”—a “default meaning,”23 given the absence of an intra-statute definition in RFRA.24 Judge Cowen ultimately found that the Dictionary Act was dispositive of the question whether RFRA covers corporations, since the plain language of the provision is clear when read in combination with the Dictionary Act.25 The Seventh Circuit, meanwhile, explored the textual context of “person” more broadly in order to determine whether the Dictionary Act’s definition applies to the ACA. The court ultimately determined that “[n]othing in RFRA suggests that the Dictionary Act’s definition of ‘person’ is a ‘poor fit’ with the [broader] statutory scheme”26 and thus held that corporations are persons under RFRA. The Sixth Circuit, noting that its analysis “begins with the Dictionary Act,”27 treated as relevant context non-textual sources even further afield, including “the body of free exercise case law that existed at the time of RFRA’s passage” and RFRA’s legislative history.28 Based on these sources, it ultimately concluded that Congress did not intend to include for-profit corporations as “persons” under RFRA.29 The D.C. Circuit, one of the circuits that avoided grappling with the Dictionary Act, argued that the Act was not relevant because a court “must construe the term ‘person’ together with the phrase ‘exercise of religion.’”30 To resolve the meaning of the phrase actually at issue, it continued, the relevant determination is whether “corporations enjoy the shelter of the Free Exercise Clause.”31 Finally, the Third Circuit, claiming not to reach the question whether “person” under RFRA includes corporations, did not engage with the Dictionary Act at all.32 Instead, it stopped its inquiry after concluding that a for-profit corporation cannot assert a claim under the Free Exercise Clause, which it deemed a “threshold question.”33

Despite the potential for Hobby Lobby to serve as a vehicle for resolving this lingering question of statutory interpretation, the Dictionary Act played an understated role in the Hobby Lobby oral arguments at the Supreme Court. Each party raised the issue exactly once—perhaps recognizing the potential for the Act to play a critical role in the Court’s disposition of the case—but both times the Justices changed the subject. Paul D. Clement, arguing on behalf of the private parties, urged the Justices to read “persons” as “pick[ing] up additional context through the Dictionary Act and [therefore] specifically appl[ying] to all corporations, to joint partnerships, to societies.”34 Justice Sotomayor, in response, deflected this purely textual approach, shifting the conversation towards how, as a practical matter and as a matter of business organizations law, a court would determine whether a corporation exercised religion.35 Solicitor General Donald Verrilli also raised the Dictionary Act. He conceded that the Dictionary Act “provides a broad definition of person,” but insisted that the “operative statutory language is exercise,” which the Dictionary Act does not define.36 In response, Justice Alito, like Justice Sotomayor, reoriented the discussion, asking the Solicitor General how a different religious freedom statute37 should affect the Court’s interpretation of RFRA.38

The Court, of course, is not limited to only those issues thoroughly fleshed out at oral arguments. Hobby Lobby presents a unique opportunity to clarify the methodology that courts ought to use to determine whether the Dictionary Act’s definitions apply, and the Court should seize it. Uniform application of the Dictionary Act would advance rule-of-law values: increased predictability, consistency among the federal courts, like treatment of like plaintiffs, and protection of reliance interests. Applying the Dictionary Act consistently would protect the reliance interests not only of litigants but also of Congress, which seems to draft, at least sometimes, with the Dictionary Act definitions in mind.39 Moreover, establishing a standard methodology for determining whether the Dictionary Act’s provisions apply would send a signal that the Court is committed to increasing predictability and reining in judicial discretion to critics of courts’ inconsistency in statutory interpretation.40 It could also be a small step forward in strengthening the dialogue between the courts and Congress.41

The Court could take one of two diametrically opposed approaches to uniform application of the Dictionary Act. First, the Court could create a clear statement rule embodying a presumption that the Dictionary Act is inapplicable. It could say to Congress that courts in the future will not turn to the Dictionary Act to determine the meaning of federal statutes unless Congress explicitly states in the particular statute that it intends for the Act’s terms to apply. The Court might justify this position as dialogue-enforcing.42 The downside of this approach is that it arguably demonstrates insufficient respect for Congress’s role as the author of federal laws. Dan Farber has written that “[p]erhaps the most obvious understanding of legislative supremacy is that courts must follow legislative directives.”43 One might object that when Congress has given the courts a relatively unambiguous legislative directive such as the Dictionary Act, it is not appropriate for courts to disregard that instruction.44

A second approach that the Court could take—and a better approach, in my view—is to create a strong presumption in favor of the Dictionary Act’s provisions. The approach could be modeled on the standard that the Court set out in Rowland v. California Men’s Colony, which, in considering the Dictionary Act’s “unless context indicates otherwise” escape hatch, held that “context” should “indicate[] otherwise” only on rare occasions.45 Such a presumption would be premised on a separation of powers theory: the task of writing statutes (and in so doing, making policy determinations) is properly left to the legislature, and courts should defer to Congress’s guidance for reading these statutes. Of course, the distinctly judicial role of interpreting words may at times appear to overlap with the legislative role of defining words. If there is to be any distinction at all, however, the courts should defer to the definitions that Congress has stated it intends to apply. Standardized application of the Dictionary Act would thereby promote, ever so slightly, Congress’s original goal of avoiding “doubt and embarrassment” in the construction of statutes.

Emily J. Barnet is a member of the Yale Law School J.D. Class of 2015. The author would like to thank Professor William Eskridge for his thoughtful comments, Professor Abbe Gluck for an inspiring introduction to statutory interpretation, Gabe Daly for his encouragement, and Daniel Herz-Roiphe and the editors of the Yale Law Journal for their helpful feedback.

Preferred Citation: Emily J. Barnet, Hobby Lobby and the Dictionary Act, 124 Yale L.J. F. 11 (2014),