By Brandon Bub
June 30, 2014
If you haven’t read the Court’s decision in the Hobby Lobby case yet, here is a link to Justice Samuel Alito’s majority opinion as well as Justice Ruth Bader Ginsburg’s dissent. But, if you don’t particularly enjoy reading through opaque Court opinions as much as I do, here are a few key takeaways from the case:
First, this was not technically a First Amendment case. The owners of Hobby Lobby were suing the Department of Health and Human Services under the Religious Freedom Restoration Act, or RFRA. Enacted by Congress in 1993, RFRA was meant to overturn a 1990 Court decision and guarantee a stricter test for government programs that might abrogate a person’s religious liberty. The Court’s decision in Smith still stands, and the Court actually invalidated the part of the RFRA that applied to the states, but the law does still apply to the federal government. RFRA requires the government to have a “compelling interest” in order to override a person’s religious liberty claim, and the proposed action must be done through the “least restrictive means.”
The majority conceded that the goal of promoting public health through the contraceptive mandate was a compelling interest, but held that the mandate is not the least restrictive way to accomplish that goal. Alito suggested in his majority opinion that the government could bear the cost of contraceptive care itself, much like it did with religious organizations for which it already made exceptions to HHS’s rule a few years ago.
That’s not quite enough to satisfy Justice Ginsburg and the dissenters (which would be a great band name). By electing not to provide contraceptive care to female employees, companies effectively force these workers to jump through extra legal hoops to obtain something that is easily available with most company health policies. Sure, that might put companies who don’t offer contraceptives at a competitive disadvantage, but service workers often don’t have the luxury of “shopping around” for employment with the best benefits. Still, this solution is probably what the Obama administration will have to go with if they still want to increase contraceptive coverage as broadly as possible.
Second, the case also turned on important questions of “corporate personhood.” A lot of people believe that this notion flowed directly out of the 2010 Citizens United decision, but it actually extends all the way back to Dartmouth College v. Woodward from 1819. The problem is that the established body of case law doesn’t quite outline the extent to which for-profit companies can exercise constitutional rights. Here, Alito said that since Hobby Lobby is a “closely held corporation” (basically, it has a limited number of shareholders, all of whom share the same beliefs), it makes no sense to treat the company any differently from a sole proprietorship. Alito couched this part of the decision in very limited terms. If a company like Google were to make this same claim, it would be a different question. Still, Ginsburg is quick to point out the problems with this approach if it is more widely applied: “By incorporating a business…an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation.”
Lastly, there’s the issue of the test that the majority used to invalidate HHS’s claim. Again, they concede that there is a compelling interest but argue that the method HHS used is not the least restrictive means And again, we see another key point where Ginsburg differs: “Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists)…and vaccinations (Christian Scientists, among others)?” Alito indirectly answers this question by saying that other kinds of coverage requirements involve different questions and might require different answers, so the government could conceivably require vaccination even if it goes against someone’s religious beliefs.
Still, the point that Ginsburg brings up here is interesting, and because the majority decision is cabined in such narrow terms, it will be interesting to see if any other cases involving similar religious liberty claims follow suit. It is significant that Hobby Lobby’s claim was based on a more or less mainstream Christian belief about the propriety of birth control medication (Note, also, that there were only 4 kinds of birth control in particular that Hobby Lobby opposed to that it called “abortifacient;” other contraceptives like “the pill” were not a problem for them). I would especially like to see how the Court would rule in a subsequent case that does not concern Christians. Consider for instance that Employment Division v. Smith, the 1990 case that effectively lowered the standard of review for religious freedom cases and prompted the RFRA in the first place, concerned a group of Native Americans in Oregon who were denied unemployment benefits for smoking peyote. They, too, alleged that their religious liberty had been violated, but the Court disagreed. And the author of that opinion? Antonin Scalia, one of the five members of today’s majority. Food for thought.
[Image by Mike Kalasnik, Creative Commons Licensed]