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Tuesday, July 1, 2014

On the Hobby Lobby Decision

To say I am dismayed at the decision by the Supreme Court yesterday regarding the "religious freedom" of for profit corporations is putting it mildly, as you can probably guess from my previous post regarding about this case.  I will say that the decision is not as bad as it could have been, but it is still potentially disastrous.

In a 5-4 decision written by Justice Alito joined by Justices Roberts, Scalia, Kennedy and Thomas with a concurring opinion by Justice Kennedy, a dissenting opinion by Justice Ginsburg joined by Justice Sotomayer in toto and joined by Justices Breyer and Kagan in all but Part III-C-1.  Justices Breyer and Kagan also issued a brief 1 paragraph dissent explaining why they did not join in Part III-C-1 of Justice Ginsburg's dissent.

Justice Alito said that while the government had a compelling interest regarding the contraceptive mandate, the government failed to prove that it was using the least restrictive means to provide for the compelling interest which is a requirement of the Religious Freedom Restoration Act (RFRA) (discussed briefly here).  He also stated that

                                 [t]he principal dissent raises the possibility that discrimination
                                 in hiring...might be cloaked as religious practice to escape legal
                                 sanction...Our decision today provides no such shield.  The
                                 Government has a compelling interest in providing an equal
                                 opportunity to participate in the workplace without regard to race,
                                 and prohibitions on racial discrimination are precisely tailored
                                 to achieve that critical goal. (p. 46)

This statement is important (hopefully) for reasons that I will discuss later.

I won't bother with Justice Kennedy's concurrence, which is only 4 pages long and easily read, so let's turn to Justice Ginsburg's dissent.  Justice Ginsburg notes that the Court's decision expands the usage of the RFRA to an alarming degree.  The RFRA was meant to prevent "laws that substantially burden a person's free exercise of their religion." (Wikipedia.com)  She argues that a for-profit corporation cannot assert a claim for rights that "significantly impinge on the interests of third parties." (dissent, p. 7)  She also discusses how the law differentiates between a for-profit corporation and a religious organization.  She finishes by asking exactly how far the court's decision reaches.

Justices Breyer and Kagan's dissent is one paragraph and can be easily read on its own.  The decision can be seen here.

Before I can get to my opinion about the Court's decision, I think that some definitions and explanations are needed.

Let's start with business types.  For more information, look here.  When someone starts a business, they need to decide how it will be set up because how it is set up will affect its legal status, liability, and other issues.  For example, if someone sets up a sole proprietorship, then the business is legally indistinguishable from its owner, which means that the owner is personally liable for actions of the company.  If a partnership is setup, then the partners are liable, although the extent here differs depending on what type of partnership is established.  For our purposes, if a corporation is set up, then the corporation is a completely separate legal entity from the owner(s) and the owner(s) are not liable for actions against the company (unless the owner is the one who did said action).  This is why it is correct to say that a corporation is a person.  It is a legal fiction, but an important one, particularly for this case.

Because a corporation is a separate entity from the people who own/run it, there are (properly speaking) no religious liberty issues at stake here.  Since the corporation, and not the owners, is paying for the insurance the owners' religious liberty is not being infringed whatsoever.  To say otherwise is to warp the law in a very untenable way.  If the owners of a corporation are to be the same as the corporation itself for this purpose, then why are they different in terms of liability in a lawsuit?

This leads us to the difference between a religious corporation (generally non-profit); a non-religious, non-profit corporation; and a for profit corporation.  A religious corporation is setup with the explicit purpose of advancing a particular religion.  This is why they have (properly) been given waivers from the contraception mandate.  If their religion forbids the use of contraceptives, whether in general or of particular types, then it would be a violation of their central mission.  If you work for one of these religious corporations, you should know that they don't cover contraception and therefore, you'll have to use the alternative method already set in place by the HHS.

This element is not present in a non-religious corporation (whether for-profit or non-profit).  These corporations are set up with the purpose of providing a specific service or set of goods.  For example, I am employed by a non-profit organization which represents physicians and non-physicians who work in the field of addiction medicine.  Hobby Lobby was setup in order to sell goods to the public.  In both cases, the central character of the organization is explicitly non-religious.  I will grant that Hobby Lobby does follow certain Christian principles (closing on Sundays for example) but this does not make it a religious corporation or bestow religious benefits on it.

Throughout the Court's opinion, Justice Alito makes consistent references to the owners' religious beliefs.  However, as can be seen from above, their beliefs are completely irrelevant to this case since the owners are not paying for the contraception directly.  The fact that the opinion completely ignored this is baffling unless it is assumed that ignoring this was purposeful.  If it was purposeful, then this opinion is a blatant twisting of the law and thus should be condemned.  If it was accidental, then Justice Alito is guilty of shoddy work.  Either way, I cannot regard this opinion as a worthy one, but rather as a case of judicial activism and not an application of the appropriate laws.

The other major problem with the law is that opens the door to a host of challenges to other laws based on religious beliefs.  Justice Ginsberg said this very nicely, so I am going to quote her at length:

                             Why should decisions of this order be made by Congress
                             or the regulatory authority, and not this Court? Hobby
                             Lobby and Conestoga surely do not stand alone as
                             commercial enterprises seeking exemptions from generally
                             applicable laws on the basis of their religious beliefs. See,
                             e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp.
                             941, 945 (SC 1966) (owner of restaurant chain refused to
                             serve black patrons based on his religious beliefs opposing
                             racial integration), aff ’d in relevant part and rev’d in part on
                             other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and modified
                             on other grounds, 390 U. S. 400 (1968); In re Minnesota ex
                             rel. McClure, 370 N. W. 2d 844, 847 (Minn.1985) (born-again
                             Christians who owned closely held, forprofit health clubs
                             believed that the Bible proscribed hiring or retaining an
                             “individua[l] living with but not married to a person of the
                             opposite sex,” “a young, single woman working without her
                             father’s consent or a married woman working without her
                             husband’s consent,” and any person “antagonistic to the Bible,”
                             including “fornicators and homosexuals” (internal quotation
                             marks omitted)), appeal dismissed, 478 U. S. 1015 (1986);
                             Elane Photography, LLC v. Willock, 2013–NMSC–040, ___
                             N. M. ___, 309 P. 3d 53 (for-profit photography business owned
                             by a husband and wife refused to photograph a lesbian couple’s
                             commitment ceremony based on the religious beliefs of the
                             company’s owners), cert. denied, 572 U. S. ___ (2014). Would
                             RFRA require exemptions in cases of this ilk? And if not, how
                             does the Court divine which religious beliefs are worthy of
                             accommodation, and which are not? Isn’t the Court disarmed
                             from making such a judgment given its recognition that “courts
                             must not presume to determine . . . the plausibility of a religious
                             claim”? Ante, at 37.
                             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); medications derived from pigs,
                             including anesthesia, intravenous fluids, and pills coated with
                             gelatin (certain Muslims, Jews, and Hindus); and vaccinations
                             (Christian Scientists, among others)?31 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.” Tr. of Oral Arg. 6. Not much help there
                             for the lower courts bound by today’s decision.

                             The Court, however, sees nothing to worry about. Today’s cases,
                             the Court concludes, are “concerned solely with the contraceptive
                             mandate. 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.” Ante, at 46. But the Court has assumed, for
                             RFRA purposes, that the interest in women’s health and well being
                             is compelling and has come up with no means adequate to serve that
                             interest, the one motivating Congress to adopt the Women’s Health
                             Amendment.

                             There is an overriding interest, I believe, in keeping the courts “out
                             of the business of evaluating the relative merits of differing religious
                             claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in
                             judgment), 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.” Ibid. The Court, I fear, has ventured into a
                             minefield, cf. Spencer v. World Vision, Inc., 633 F. 3d 723, 730 (CA9
                             2010) (O’Scannlain, J., concurring), by its immoderate reading of
                             RFRA. I would confine religious exemptions under that Act to
                             organizations formed “for a religious purpose,” “engage[d] primarily
                             in carrying out that religious purpose,” and not “engaged. . .
                             substantially in the exchange of goods or services for money beyond
                             nominal amounts.” See id., at 748 (Kleinfeld, J., concurring).
As I noted above, the opinion of the Court does say that it is only meant to apply to closely held corporations and only to the contraceptive mandate, but I really don't see that working.  If you think I am exaggerating, please look at this page where conservative activists are looking to use this ruling to roll back rights for the LGBT community.  I hope that the lower courts follow what Justice Alito says, but I fear that they won't.