The Deeper Meaning in the Hobby Lobby Opinion

The Supreme Court has issued its long-awaited ruling in Burwell v. Hobby Lobby Stores, Inc. On both the standing and merits questions under the Religious Freedom Restoration Act, the federal government lost. In a 5-4 majority decision authored by Justice Alito, the Court held that:

  • Closely held for-profit corporations such as Hobby Lobby are “persons” within the compass of RFRA and can exercise religion (Justices Breyer and Kagan did not decide this issue one way or the other);
  • Closely held for-profit corporations that have religious objections to providing contraception as part of their employee health plans suffer a substantial burden on their religious exercise by operation of the contraception mandate; and
  • Even if the government’s broadly formulated interests in “public health” and “gender equality” are compelling (a question left undecided by the majority opinion but seemingly embraced in Justice Kennedy’s concurrence), the government nevertheless has failed to achieve its interests by the least restrictive means.

The least restrictive means portion of the analysis was always the most difficult part of the test for mandate supporters. It is, as the Court said, “exceptionally demanding and it is not satisfied here.”

The decision is narrow in some obvious ways, but potentially broader in others. The Court emphasizes that its holding is limited to this particular healthcare mandate, but other healthcare mandates (involving immunizations or blood transfusions, for example) might come out differently. The majority opinion reaches only closely held, for-profit corporations that offer employee health plans. Publicly traded corporations with many diffusely associated shareholders are not covered. Finally, the holding is hardly groundbreaking because the case has no constitutional import at all. This has always been primarily a case about the interpretation of a federal statute, and any First Amendment claims were not reached. Justice Ginsburg mistakenly argues that Employment Division v. Smith forecloses constitutionally required exemptions for corporations like Hobby Lobby; that remains an entirely open question.

But the holding is potentially broad in the following way. The majority says that RFRA protects a broader class of religious exercise than is covered by the First Amendment: “any exercise of religion” receives protection under RFRA, and not only those forms of exercise recognized in the constitutional doctrine.” The Court further states: “By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.” And again: “Nothing in the text of RFRA as originally enacted suggested that the statutory phrase ‘exercise of religion under the First Amendment’ was meant to be tied to this Court’s pre-Smith interpretation of that Amendment.” These statements eliminate the claim that a legislature can go no further in accommodating religion than the sorts of claims adjudicated in the Court’s pre-RFRA constitutional jurisprudence.

Stripped of the culture-war rhetoric that has saturated the contraception issue for years, the decision is a fairly straightforward exercise in statutory interpretation. The practical result is probably that closely held for-profits will receive something like the government largesse that nonprofit objecting corporations now receive. No woman who works for an objecting company like Hobby Lobby and who desires cost-free contraception will be denied access to it. But here are two reflections about the case’s perhaps deeper meaning.

The Fate of Objecting “Accommodated” Nonprofit Organizations

Alongside the Hobby Lobby challenge to the contraception mandate are the cases brought by nonprofit religious organizations including the Little Sisters of the Poor. Rather than receiving an exemption outright, those organizations have been required by the federal government to object to providing the contraceptive products and services in their health plans and then to designate a third party who must provide them. This scheme is called an “accommodation” and is less than an exemption: an exemption is what churches and their integrated auxiliaries received.

The Supreme Court has now stated in Hobby Lobby that the “accommodation” provided to objecting nonprofits is a “less” restrictive means of achieving the government’s interests than what the government offers to for-profit entities—to wit, no exemption at all. This particular means had special rhetorical power because it was one that, as Justice Kennedy stated, the government “itself has devised.” It would cost the government nothing to implement it, and it would fulfill the government’s interests in exactly the same way. The “accommodation” is characterized by the Court as a “less” restrictive means of achieving the government’s interests than driving it down the throat of objecting for-profit employers. That does not necessarily mean that the “accommodation” is the “least” restrictive means available to the government, but it might. The Court adds that “[w]e do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims,” and Justice Ginsburg gamely calls the majority’s bluff on this score in her dissent.

The resolution to this problem may lie in footnote 9 of the Court’s opinion, where it refers to its order in the Little Sisters of the Poor case requiring that organizations and others like it simply to notify the federal government of their religious objections, without the requirement to designate an alternative provider. The objecting nonprofits can do that simply by mailing the government a copy of their complaint.

The Separation of the Legal Academy and the Court

This marks the third Supreme Court religious freedom decision in a row in which the arguments pressed by a substantial number of law professors were not accepted by the Court. Certainly the comment does not apply to all legal academics; one law professor was counsel for Hobby Lobby. But a distinct, overlapping, and numerous segment of law professors, loosely connected by suspicions about conservative religious beliefs and by the desire to restrict the influence of those beliefs on public and social life, has been on a losing streak.

The string of misfires began in the buildup to the ruling about the so-called “ministerial exception,” which involved the constitutional right of religious entities to make independent employment decisions about their ministers. Many legal scholars made the argument (one accepted by the Obama administration) that, notwithstanding the text of the First Amendment and the tradition of religious freedom in the United States, religious entities were to be treated no differently than any other secular association. The Supreme Court unanimously rejected that claim, calling it “extraordinary.” One might say more modestly that, from the standpoint of the doctrinal and social history of religious freedom in this country, it was not an argument likely to persuade the Court.

Next this term came Town of Greece v. Galloway, a case involving the constitutionality of legislative prayer. Once again, as a textual, historical, and doctrinal matter, the case was not particularly difficult. A majority of the Court relied on the long, uninterrupted history of legislative prayer—one that existed comfortably and ubiquitously before, during, and after the drafting and ratification of the Establishment Clause—to find the practice constitutional, though it imposed various sensible limitations on the practice. There was a lone case nearly directly on point—Marsh v. Chambers (1983). Unsurprisingly, the Supreme Court did what it usually does under the circumstances: reaffirm the precedent and apply it. Even the dissent in Town of Greece accepted the legitimacy of the traditionalist and historically sensitive approach laid out in Marsh. And yet the legal professoriate (this time without the Obama administration’s support) railed against the constitutionality of legislative prayer before and after the Court’s unremarkable and largely predictable holding.

The same pattern can be seen in this case. A significant and influential fraction of the legal academy argued that Hobby Lobby should lose. Their arguments were sometimes cleverly imaginative, and other times somewhat strained. They ranged from claims that there was really no mandate at all, to claims that granting an accommodation would violate the Establishment Clause, to claims that corporations can never exercise religion (this came as a surprise to the corporations that had in the past brought religious freedom challenges), to claims that for-profit corporations alone cannot exercise religion, to claims that RFRA is unconstitutional as a violation of the separation of powers, and so on. All of these arguments were rejected by the Court. Many of them were not touched by the dissents.

Justice Ginsburg came closest to endorsing one claim I have heard advanced by a prominent group of legal academics when she stated that, “no tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others.” But exemptions—religious and otherwise—almost always impose burdens on others, burdens that harm others’ interests in some way. Justice Ginsburg herself described the interest in “uniform compliance with the law” as “compelling,” and presumably the poor soul who subscribes to such an interest is “harmed” by the failure to achieve it. As Justice Alito observed at footnote 37 of the majority opinion, if accepted, Justice Ginsburg’s third-party-harm argument would mean that by characterizing “any Government regulation as benefiting a third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless.” To say that the American tradition of religious freedom forbids exemptions that impose any harms on others is tantamount to saying that it forbids exemptions, period, other than those that cost nothing. Yet here these arguments are totally beside the point, since the government could achieve its interests by many cheap alternative mechanisms that would have no negative effects at all on the female employees’ access to cost-free contraception coverage.

Many legal academics may contest my claims about their arguments in Hosanna-Tabor, Town of Greece, and Hobby Lobby. The Supreme Court, they will tell you, got it wrong. And their job, anyway, isn’t to predict Supreme Court rulings. It is to promote social change or to advocate for justice or to advance various important policy objectives. Fair enough. The fact that the Court is rejecting their arguments certainly does not mean that the arguments are without merit. But the results in these cases and the rationales used to reach them were not unexpected as a legal matter. They followed fairly plainly from the textual, historical, and doctrinal legal backdrop. And they may suggest that the oft-remarked distance between the legal academy and the bench is growing, and that it is nowhere more in evidence than in the law of religious freedom.

Marc O. DeGirolami is Associate Professor of Law at St. John's University School of Law and is the author of The Tragedy of Religious Freedom (Harvard University Press, 2013). He is also Associate Director, Center for Law and Religion.

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Comments

  1. D.E. Frydrychowski says

    “The majority opinion reaches only closely held, for-profit corporations that offer employee health plans. ”

    No, the logic necessary to the holding is considerably broader. The Court holds that the rights possessed by a corporation exist to protect the rights held by the ‘owners and controllers’ of the corporation, and if you read the surrounding paragraphs, it’s clear that this includes executives/employees of the corporation. Which means that, despite the limitation in the stated holding, larger, widely held corporations which can’t be reached through their investors can still be subject to RFRA claims based on the executives’ compelled conduct.

    • R Richard Schweitzer says

      “The Court holds that the rights possessed by a corporation exist to protect the *rights* held by the ‘owners and controllers’ of the corporation, . . .”

      Here we come face-to-face again with the problems created by conflating “freedom” with rights. The individual has freedom to hold an exercise articles of religious faith and belief, in all or any part of the individuals conduct and relationships with other individuals. That is a freedom.

      The exercise of that freedom, though protected from interference by constitutional and legislative prohibitions that constrain uses of the mechanisms of government, does not convert that freedom into a “right” which is sustained by obligations of others in recognition of that freedom.

      Freedoms are inherent in accordance with the capacities of their possessors. Rights of some are contingent upon the recognition, acknowledgment, acceptance and performance of obligations of others in active conduct, or constraints upon conduct.

  2. R Richard Schweitzer says

    A fabulously well-turned survey!

    It pinpoints a crucial judicially created fallacy:

    “•Even if the government’s broadly formulated interests in “public health” and “gender equality” are compelling (a question left undecided by the majority opinion but seemingly embraced in Justice Kennedy’s concurrence), the government nevertheless has failed to achieve **its interests** by the least restrictive means.”

    Government(s) has (have) no interests. This judicial and legal academics’ reification and anthropomorphism of a political mechanism has shaped a Golem more destructive of human relations and values than productive of useful labor.

    This survey also takes note of the trends in the legal academy to replace law with legislation and thereby establish Rules of Policy to describe, define and delineate a *desired* social order and the relationships necessary for it. Naturally, such replacement would elevate the role of those “thinkers.” Impediments to the thinking for developing concepts of a designed social order have become an anathema. Meanwhile, large segments of the legal academy are entering a period of crisis..

    What might be added to the survey is a perspective of something other than an “exception” to legislative edict. The issue in this case arose entirely from the exercise of bureaucratic discretion (apparently granted by the legislation) to design requirements for, and imposition of, benefits to be provided in private insurance and healthcare contracts. The exercise of that bureaucratic discretion, and the refusal of those exercising that discretion to provide accommodation, is what gave rise to the impacts on other human relations including those of ideological content.

    This case involved the collision of the now established fourth branch of government, the Federal Administrative State, with the constitutionally delineated limitations on the uses that may be made of the mechanisms of the federal government.

    • says

      Richard, I’m afraid you’ve mistakenly — incorrectly “conflated” – one fact– “free exercise” into a “set”. You define “freedom” and “right” as individually – to a set. That is not what the First Amendment’s Religious Exercise Clause — infers. That is your inference, certainly not “free exercise” — as the enumeration constitutes — by “the people”. Are I, and the reader, to understand you as stating that “prohibitions that constrain uses of the mechanisms of government, — does not convert that freedom — into a “right”? (Emphases added)
      Respectfully, John
      (Facebook, author of The Tribute)

      • R Richard Schweitzer says

        “You define “freedom” and “right” as individually – to a set. ”

        No. They are “defined” individually, not as parts of a set.

        The exercise of any freedom is not “converted” into a “right” by virtue of a Constitutional prohibition of legislative impediments to the exercise of that freedom.

        Now, perhaps some might strain at the “inference” in the use of the term “exercise.” But, the freedom to believe that certain acts on one’s part are (or would be) inimical to, or transgression of, a held faith is not a “right;” it is a *freedom* inherent in the capacity of the person.

        To force that person to such acts of transgression is a violation of freedom, not of rights.

        “The individual has freedom to hold an[d] exercise articles of religious faith and belief, in all or any part of the individuals conduct and relationships with other individuals. That is a freedom.”

        There is no other inference.

      • R Richard Schweitzer says

        On further thought:

        Perhaps there is a better way to clarify:

        Freedoms are “organic;” Rights are “social.”

        Always as qualified by organic capacities, one has freedom to see- the freedom of sight, smell, touch and hearing; the freedom of perceptions derived from freedom of thought of the sensory information received. Those freedoms are the among the sources of tacit personal knowledge. They are distinct from rights that arise in human intercourse.

        • gabe says

          Richard:

          Agreed – freedoms are organic and rights are social.
          So here is a question I have been tossing around in my cabernet besotted brain:

          If conscience is organic (and thus a freedom) but religion is social (one person does not a religion make) and presupposes civil society, is not religion a right that is supported or abridged by the community? – and can that community then limit this right without violating “natural” rights because no effort is made to affect conscience freedoms of the individual.

          Criminies, I hope I did not shorten this into incomprehension.

          • R Richard Schweitzer says

            Try shifting to Verdejo or Cortese di Gavi for flushing and clarification.

            “Religion” (unless one follows the Lewis Carroll dictum) is *not* “social. As it is dependent upon an individual sense of “constraints” or “limitations,” that lead to, create or infuse “beliefs,” it is sensorially tacit in individuals (again by capacity).

            [History of Anchorites]

            The organization of beliefs, by their commonalities in groupings of individuals (society), is not the tacit essence of religion – the belief is.

            The atavistic “need” for belief is individual, not social; though through commonalities, that need may be shared.

        • says

          Richard, your, (1.)“The exercise of any freedom is not “converted” into a “right” by virtue of a Constitutional prohibition of legislative impediments to the exercise of that freedom… (2.) Now, perhaps some might strain at the “inference” in the use of the term “exercise… (3.) To force that person to such acts of transgression is a violation of freedom, not of rights… (4.) On further thought: They are distinct from rights that arise in human intercourse.”
          Richard, you are stating, (1.), that the enumeration “free exercise” (as “the exercise of freedom”) is to be interpreted as being “converted into an “impediment” of a “prohibition“– only. Why would the people by conventions in three fourths thereof, by the mode of ratification, add the word”therof”(religion) and not “exercise of freedom”? My answer to that is: (2.) because the people ESTABLISHED “religion” – so there would be no (3.) “transgression” of that established “freedom(‘s)”right – (4.) NOT “distinct from rights that arise in human intercourse”.
          Those who oppose religion, and those who would be progressive against “the free exercise” — of the peoples State Constitutions –COME, by the “rights that arise — in human intercourse – by them, and the federal branches of government.
          Respectfully, John
          (Facebook, author of The Tribute)

  3. Daniel Artz says

    So Justice Ginsburg thinks that “uniform compliance with the law [i.e., PPACA]” is a “compelling” governmental interest. I wonder if President Obama was aware of that before he started handing out waivers and exemptions willy-nilly to any of various requirements of PPACA. For example, should all of the Labor Unions which obtained from HHS exemptions from the “Cadillac Plans” provisions of PPACA lose those exemptions, given the “compelling” governmental interest in “uniform compliance with the law.”

    • R Richard Schweitzer says

      Taken from the post above:

      “Government(s) has (have) no interests. This judicial and legal academics’ reification and anthropomorphism of a political mechanism has shaped a Golem more destructive of human relations and values than productive of useful labor.”

  4. Bruce says

    Those freedoms are the among the sources of tacit personal knowledge. They are distinct from rights that arise in human intercourse.

    Wow. You are basically saying I have no freedom in my interactions with others. Only rights which the government can control. Thanks but no thanks.

    • R Richard Schweitzer says

      No. That is not the statement.

      You have those freedoms regardless of rights that may arise from human intercourse. They are distinctly different.

    • R Richard Schweitzer says

      If read in the full context of that paragraph concerning physical (sensory) freedoms which do not (anywhere -yet) come from governments or any other social entity, it is difficult to see how you can reach such an interpretation.

      • gabe says

        Richard:

        You are correct regarding a “sensory” freedom – this is, I believe a genetic predisposition of humans – and can not be eliminated; nor should it be.
        However, a religion is something else. It builds upon this sensory “conscience” freedom but must both encumber and require the support of like minded (or” conscienced”) individuals. These other individuals are to be found in civil society, however primitive that society may be. doubtless, its rituals and belief systems arise from the efforts of the many practitioners even if primarily based upon the teachings of one man. It is also provided support by the civil society in varying degrees.
        My point is not that there is no natural inclination for religiosity but rather that an organized religion is an outgrowth of a civil society (even if it is a subculture) and is more of a communitarian than a natural “freedom.”

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