Isn’t the loosey-goosey “closely held” distinction in the Hobby Lobby cases intellectually incoherent?

According to CNBC in an article published on May 15, 2014,  Warren Buffett is the “CEO and primary shareholder of Berkshire Hathaway . . . .” For example, as of July 1, 2010, Buffett owned 32.4% of the aggregate voting power of Berkshire’s shares outstanding and 23.3% of the economic value of those shares. See Warren Buffett’s 2010 SEC Schedule 13D/A Filing.

If Mr. Buffett has effective control of Berkshire Hathaway, shouldn’t Berkshire Hathaway be considered “closely held” for purposes of the Supreme Court’s Hobby Lobby cases and the Religious Freedom Restoration Act of 1993 (RFRA), even though Berkshire Hathaway stock is widely and publicly traded? Compare Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____, slip op. at pp. 29-31 (June 30, 2014) (“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.”) (emphasis added by Kopf).

What is the meaning of “closely held” and where in RFRA is such a distinction found? Why should it matter whether a corporation is “closely held,” whatever those words might otherwise mean, if the board of directors or CEO sincerely express a religious objection on behalf of the corporation to the contraception mandate found in the regulations of the Patient Protection and Affordable Care Act of 2010 (ACA)?

RGK

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