Burwell v. Hobby Lobby is one of the most dangerous Supreme Court decisions ever, and we are already seeing why. The ruling misinterprets religious freedom in the United States, restricts the rights of women everywhere, raises religious belief above medical and scientific fact in lawmaking, and is easily expandable to accommodate the religious objections of a host of corporation owners.
On the final day of the October 2013 term, the Supreme Court handed down the decision in the Hobby Lobby case, exempting closely held, for-profit corporations from any law to which they have a religious objection, provided there is a less restrictive way for the government to achieve the law’s aim.
A closely held corporation is one that is generally not publicly traded on the stock market, but whose stock is held by only a few shareholders, usually within a family — in the case of Hobby Lobby, the Green family. The Greens and a few other closely held corporation owners, sued the federal government over the ACA’s contraception mandate, which required them to provide insurance coverage for their employees that includes, at no co-payment, any of the 20 types of FDA-approved contraception for women. In particular they objected to four types of contraception that they believe, incorrectly, to be abortion-inducing.
The long and short of the majority opinion, written by Justice Samuel Alito, is this:
According to the Dictionary Act, corporations are people;
The Religious Freedom Restoration Act (RFRA) forbids government interference in people’s free exercise of religion unless it does so for a compelling reason and in the least restrictive way possible;
The government’s interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning o f RFRA;
However, the Department of Health and Human Services has already demonstrated that it can apply the contraceptive mandate in a way that doesn’t restrict religious freedom, because it exempted non-profits from the mandate and simply required insurance companies to issue separate contraceptive coverage policies without allowing cost-sharing;
Thus, the government has failed the compelling interest test, and the contraceptive mandate, as applied to closely held corporations, violates RFRA.
Justice Alito, is a smart man, but he has tortured together a line of reasoning that borders on the absurd and has crafted an opinion that is rife with danger and hypocrisy.
What is a ‘person’ really?
Often, the media blame the Supreme Court, specifically the Citizens United decision, for the idea that corporations are “people” under the law. However, it actually came from Congress.
In 1871 Congress passed what is known as the Dictionary Act in order to clear up some confusion in the way that people and courts were to interpret acts of Congress — things like: Even when Congress uses the singular it still means the plural; when it uses the masculine form of a word it means the feminine as well; words in the present tense are meant to include everything from that time forward. These are simple concepts to keep lawyers from trying to, say, exempt women from generally applicable laws that only use masculine pronouns, and things like that.
The Dictionary Act also provides definitions for a few important operative legal words that get used a lot in lawmaking, which, with typical congressional vagueness, are meant to apply only “unless the context indicates otherwise.” Among other definitions in the Act is this: “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
The circuit courts that decided cases on the contraception mandate before the Supreme Court took it up grappled with this question of context and the interaction between the Dictionary Act and the RFRA. Yale Law student Emily J. Barnet wrote a brief, excellent analysis on the Yale Law Journal Forum, in which she said, essentially, that three of those five circuits determined that Congress did not intend to include for-profit corporations as “persons.”
Where did the Religious Freedom Restoration Act come from, anyway?
In 1990, the U.S. Supreme Court decided Employment Division, Dept. of Human Resources of Oregon v. Smith. After being fired for ingesting peyote as a part of their religious ceremonies, Alfred Smith and Galen Black were denied unemployment benefits. As members of the Native American Church, they argued that their firing had been an infringement of their First Amendment right to free exercise of religion and was therefore unconstitutional.
Justice Scalia, writing for the majority, held that the government did not need to prove a compelling interest in the enactment of generally applicable, religion-neutral laws that might have the effect of burdening a particular religious practice.
Further, he said, allowing that sort of scrutiny in those cases would, “… open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”
Congress and the American public were incensed. Liberals and conservatives came together in a dramatic campaign, and in 1993 Congress passed RFRA with nearly unanimous votes in both houses. The Act’s operative section is aimed at directly contravening the Court’s decision in Smith. For our purposes, the important parts are:
the government cannot substantially burden a person’s exercise of religion, and
if it does, it has to do use the least restrictive means possible.
In drafting RFRA, Congress did not bother to define the word “person,” however, the context of religious freedom should have indicated to Justice Alito, as it did to three of the five circuits to take up the question, that while corporations may enjoy many of the legal benefits of a person, this cannot and should not include the right to a religious identity.
An actual human person doesn’t have the ability or right to force everyone around him to abide by the restrictions of his religion, even if those people work for him. By allowing closely held corporations to take on a religious identity, Alito has allowed their owners to impose many parts of their religions upon the people who work for them.
By all accounts the Greens are a hard-working bunch to have built a company from a single Oklahoma store in 1972 to 575 stores nationwide today. They are the epitome of the “American Dream.” However, this hard work does not give them the right to impose their religion on all of their employees.
Or, I guess according to Alito, it does.
What is RFRA’s Purpose?
The very first thing that Alito does in Hobby Lobby is attempt to analyze what RFRA actually does. He wants to discern what the Congress meant when it said that it wanted to protect religious freedom.
And he gets it completely, startlingly wrong.
Referencing a later amendment to RFRA, he chose to interpret it as an extremely broad mandate that allows him to extend religious freedom “protection” to even for-profit corporations, based on the idea that it was “[to] 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.”
However, Justice Ruth Bader Ginsburg, in her dissent, points out from RFRA’s congressional record that it was never meant to “create … new rights for any religious practice or for any potential litigant” and that the “compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”
What is the difference between the nonprofits that were already exempted under the law and the for-profit corporations to which Alito just gave carte-blanche? As Ginsburg went on to say:
“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.”
That is why these for-profit corporations shouldn’t be covered by RFRA’s protection.
Congress’ own words as it was enacting the law, combined with the Dictionary Act’s insistence on the importance of context should have told Alito all he needed to know about whose religious freedom Congress was actually trying to protect — the freedom of the tens of thousands of women he just abrogated in favor of a few corporation owners.
One questions how fervid the religious objection to these forms of contraception actually is among those corporate owners, considering that they were simultaneously invested in the manufacturers of those contraceptives.
What’s the big deal about contraception anyway?
The Supreme Court has already decided that everyone has a constitutional right to obtain contraception. The many arguments why women need access to the ability to control their own reproductive systems have been made over and over by people more qualified than I — e.g., Planned Parenthood, Guttmacher Institute, the National Journal, even Web MD.
However, as true and as important as these reasons are, they are all missing one obvious thing: Women enjoy sex, too, and they should get to have as much of it as men. In the end, I see all of these arguments about abortion, contraception, and religion as being about one thing: the place of women and sex in society.
My religion trumps your “right” to employer subsidized consequence free sex.
— Erick Erickson (@EWErickson) June 30, 2014
What right wing talking-head Erick Erickson is talking about here is consequence-free sex for women, because it’s women who have to do all of the baby-carrying. If a man gets a girl pregnant, he is not expected to consider what it will do to his career, whether he should drop out of college, or what is going to happen to his body. No, that is left up to the woman. Over and over liberals have pointed out that “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.” Hobby Lobby, a decision by five Catholic men, represents a step back from that concept.
And the cost of contraceptives is not the small consideration that Alito contends. Ginsburg in her dissent pointed out that “the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”
Sean Hannity, always classy and in touch, responded to this by saying, “I was in the drugstore the other day, and guess what: There’s a whole section of birth control. Go buy it! You can get a condom in a New York bar for free. As a matter of fact, you can take a handful.”
Does Sean Hannity think that condoms will protect a woman from uterine cancer or ovarian cysts? Or perhaps they help with anemia or endometriosis? No, all he is thinking about is the “slutty” woman of his imagination who is out having constant, consequence-free sex.The thought of responsible women having sex and being empowered to exercise control over their own lives scares small people like Sean Hannity, Rush Limbaugh (I won’t even get into how he thinks birth control works), Eric Bolling, and other arch-conservatives who don’t want their world changed by what women can do and who want to keep feeding their audiences garbage in order to keep ratings up.
Science? Medicine? Not important.
One of the scariest lines in the Hobby Lobby opinion is this one:
“The owners of the businesses have religious objections to abortion, and according to their religious beliefs, the four contraceptive methods at issue are abortifacients.”
Alito doesn’t seem to care about all of the scientific evidence that this belief is based on a lie. These four types of contraception prevent pregnancies; they do not cause abortions.
Alito is saying quite clearly that, going forward, we are going to reject what science and medicine tell us is true about the world we live in when it comes to determining the extent to which someone’s religious freedom is allowed to impinge on other people’s lives.
A narrow ruling? Not on your life.
Near the end of the Hobby Lobby opinion, Alito laughs off the argument that the ruling will lead to a flood of religious objections to a wide variety of medical procedures and drugs.
Justice Ginsburg had challenged him in her dissent, asking if the religious exemption would extend 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 Scientists, among others)?
“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.’ Not much help there for the lower courts bound by today’s decision,” she wrote.
Alito attempts to say that this ruling is narrow, because it applies only to contraceptive mandates of closely held corporations — but he never includes any language in the opinion to make that so.
This is the single most dangerous aspect of his ruling for two reasons:
First, there is nothing narrow about applying a holding only to closely held corporations. The Washington Post reported that, according to a study by the Copenhagen Business School, closely held corporations in the United States make up about 90 percent of all corporations and, according to studies from Columbia University and New York University, employ approximately 52 percent of the American workforce.
Not so narrow.
Second, there is no way for Alito to control to what this opinion will end up applying. It is hard to imagine a court legitimately finding that the Christian objection to abortion is somehow more valid than the Christian Scientist objection to vaccinations or the Muslim objection to interest or fees in lending. That runs the very real risk of preferring one religion over another and violating one of the bedrock principles of our constitution. All Alito gave us was, “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.”
This is not very definitive language. He didn’t say that an insurance coverage mandate would never fall under the reasoning of this decision, only that it doesn’t have to.
Ginsburg goes on:
“There is an overriding interest, I believe, in keeping the courts ‘out of the business of evaluating the relative merits of differing religious claims,’ 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.’ The Court, I fear, has ventured into a minefield, by its immoderate reading of RFRA.”
Her fears were borne out by what happened the very next day.
Hobby Lobby fallout
The first thing that happened to this “narrow ruling” was very likely an expansion of its scope. Initially, there was confusion over whether Alito had struck down the mandate as it applied only to the four types of contraception to which Hobby Lobby had originally objected. The answer from the Court, in a ruling the next day that sent back three cases for reconsideration: Probably no — it would apply to all 20 forms of FDA-approved contraception.
Those three cases are all “Catholic” corporations that oppose the entire spectrum of birth control and had asked for an injunction against the ACA’s contraception mandate pending a lawsuit against it. All had been denied. By sending those cases back for reconsideration in light of the Hobby Lobby decision, the Court is sending a clear signal that perhaps the entire mandate is invalid when it encounters a closely held corporation’s newfound religious identity and freedom.
Remember when Alito praised the accommodation that the Obama administration had made for nonprofits as a workable solution to the problem of restricting corporate religious freedom? When he called it proof that there was a less restrictive solution? Well, apparently that doesn’t matter anymore.
As part of that accommodation, the organization that objects to providing the contraceptive coverage just has to submit a form to HHS requesting the exemption and detailing why it is eligible. Some of them objected even to this as a violation of religious liberty, including Wheaton College in Illinois, which applied to the Supreme Court for an emergency stay on the requirement, which it was granted.
Justice Sotomayor promptly and officially went ballistic on the men of the court:
“Those who are bound by our decisions usually believe they can take us at our word … Not so today. Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs, but thinking one’s religious beliefs are substantially burdened … does not make it so. Not every sincerely felt ‘burden’ is a ‘substantial’ one, and it is for courts, not litigants, to identify which are …. The Court’s actions in this case create unnecessary costs and layers of bureaucracy, and they ignore a simple truth: The Government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”
Finally, the court’s decision in Hobby Lobby has already resulted in several cases needing to be reheard and many new lawsuits seeking “religious liberty.” The conservative Becket Fund maintains a webpage and graphic devoted to the fallout from the Hobby Lobby decision. It details the 122 nonprofit and 193 for-profit plaintiffs who now have cases pending before various courts seeking religious exemption from one part or another of the insurance mandate. Already over 70 injunctions have been granted on various grounds. So much for Justice Alito’s “narrow ruling.”
A ray of hope
However, lest you think I am all gloom and doom, there is a ray of hope in all of this. Originally, Hobby Lobby, and the other complainants, had brought suit under the Religious Freedom Restoration Act and the Free Exercise Clause under the First Amendment. Justice Alito’s decision focused only on the RFRA claim, finding the contraceptive mandate a violation of that law. He did not reach the constitutional claim at all.
This is good news.
If Justice Alito had decided the case on a constitutional basis, it would have required a constitutional amendment to fix most likely. As it stands, this case was decided on the basis of a statute written by Congress — more specifically, on the definition of a few words in that statute, like “person” and “exercise of religion.” To undo the damage Justice Alito has done to women everywhere, all Congress would have to do is simply amend the statute to change the definition of one or more of those words.
The chances of that happening in the current Congress are next to nothing, however, it is exponentially more likely in a future Congress than the ratification of a constitutional amendment. It’s not much, but it’s something.