Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible

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There are times when a court’s reasoning becomes so precious that it has no contact with reality, which is precisely what happened when the en banc U.S. Court of Appeals for the Tenth Circuit decided Hobby Lobby v. Sebelius.  The case is filled with interesting theoretical issues that interest law professors, including standing, ripeness, the application of the Anti-Injunction Act, and whether statutory exceptions mean that the government has no compelling interest in precluding other exemptions, among others.

But the single most important issue in the case, for future cases and actually for the wellbeing of the United States, is whether a for-profit company is a religious “person” under the Religious Freedom Restoration Act (RFRA).  The short answer is, “No,” as the Third Circuit correctly held in Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs.

A majority of the en banc Tenth Circuit held to the contrary.  According to five federal judges, the for-profit businesses owned by the Green family, Hobby Lobby and Mardel Christian bookstores, are religious “persons,” and, therefore, can have the benefit of RFRA.  The problem with the Court’s reasoning is that it is utterly divorced from RFRA’s history, its enactment, and the larger context of federal law generally.  (The court never reached the issues under the Free Exercise Clause, but Hobby Lobby surely would have lost under any constitutional theory, meaning that the culprit for this ridiculous holding is a federal statute.)

The court engaged in a mechanistic reading of RFRA, divorced from its history and basic common sense.  The majority started off on the right foot by quoting RFRA correctly: “Government shall not substantially burden a person’s exercise of religion.  42 U.S.C. 2000bb-1(a).”  It then quickly ran off the rails when it turned to The Dictionary Act, 1 U.S.C. 1, which was their “first resource in determining what Congress meant” in the absence of an explicit definition.  It states: “In determining the meaning of any Act of Congress, unless the context indicates otherwise * * * the word[] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”  (Emphasis added).  The majority reasons that because there is no definition of “person” in RFRA, it must turn to the Dictionary Act, but the decision irrationally leapfrogs over the language italicized above: “unless the context indicates otherwise.”

The Enactment of RFRA Would Not Have Happened If For-Profit Companies Were to Be the Beneficiaries

First, it is critical to understand what RFRA is.  It is a federal law enacted to reverse the Supreme Court’s free exercise of religion decision in Employment Div. v. Smith.  Due to the doctrine of constitutional avoidance, which means that courts are required to address constitutional issues only after addressing potentially dispositive statutory issues, it displaces the courts’ role in the interpretation of the First Amendment’s Free Exercise Clause (as happened in this case).  Its mechanism imposes the constitutional standard of review, strict scrutiny, upon neutral, generally applicable laws, meaning that it disables duly-enacted laws to the benefit of religious lawbreakers.

There was absolutely no inkling during the three years of hearings preceding the enactment of RFRA that for-profit businesses would be able to invoke this extraordinary statutory right to get around duly-enacted, neutral, and generally applicable laws.  Had that concept been barely muttered at the time, RFRA would have been stopped cold in its tracks.  The tenor of the push for RFRA was that powerless religious believers desperately needed more protection from the government than the Constitution provides.  Setting aside the point that the demand for RFRA rested on misrepresentations about First Amendment doctrine and was unsupported by facts, no one remotely imagined that for-profit businesses needed or would ever demand such protection.

Indeed, the enactment of RFRA was actually an exercise by members of Congress loudly and repeatedly insulting the Supreme Court for its interpretation of the Free Exercise Clause, with little attention to facts.  Congress barely considered any examples of why RFRA was purportedly needed—which is one of the key reasons it was held unconstitutional in Boerne v. Flores.  To be certain, though, the examples considered in the midst of all of the invective against the Court involved individual religious believers, with the focus, if you can call it that, on the Hmong and Orthodox Jews objecting to state-mandated autopsies in cases of suspected foul play.  The leap from these examples to a holding that would make Bank of America a religious “person” if its corporate charter mentions Jesus is far outside the “context” of RFRA’s enactment, and shows how wrong the Tenth Circuit’s wooden reasoning is.

RLUIPA Weighs Against the Tenth Circuit’s Reading of RFRA, Not the Other Way Around

The specious reasoning of Hobby Lobby is even more troubling than it appears at first blush, because the majority drops a footnote saying that RFRA must include for-profit organizations, because the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) covers religious “entities.”  This is positively nonsensical!  RLUIPA mandates strict scrutiny against local land-use laws for religious persons and entities, meaning churches, mosques, and synagogues.  If RLUIPA covers for-profit developers, cities, zoning commissions, and homeowners (expecting their neighborhoods to remain residential) should just fold their tents.

On the reasoning of this Tenth Circuit en banc 5-person majority, all Toll Brothers needs to do to avoid ordinary land use law and zoning restrictions in order to install huge tract-housing developments is to invoke a religious belief of the Toll family in placing its developments where they will make the most money.  The Walton family need do no more than name a religious belief in having a Wal-Mart in every city, and it will be able to assert RLUIPA to build Wal-Marts with radically restricted local land-use restrictions and the threat of a federal lawsuit to obtain any choice location it seeks.  This reasoning is so absurd that it shows that RLUIPA actually weighs against the Tenth Circuit’s fiction-based interpretation of RFRA.

The Federal Government Should Take a Position with RFRA as It Did With DOMA

The utility of the Tenth Circuit’s en banc Hobby Lobby decision is that it illustrates RFRA’s capacity to turn religious believers into oppressors.  If the decision were correct, it would mean that large for-profit employers, who may not discriminate in hiring based on religion, can still coerce their employees into following their religious beliefs.  It is an invitation to Balkanize the American workplace.  As I have written copiously, the federal courts have rarely considered the issue, but RFRA is a violation of the separation of powers as an aggrandizement of Congress’s power at the expense of the Supreme Court; a violation of the Establishment Clause; and an attempt to subvert Art. V’s constitutional amendment processes.  The Obama Administration should take the same position on RFRA that it did on the Defense of Marriage Act: it’s unconstitutional.  The mere fact that a law was signed into law by a prior President does not mean that later Administrations must agree that the law was constitutional.

At the very least, the federal government needs to consider which of its neutral, generally applicable laws really matter, and exempt them from RFRA’s pernicious reach.  So far, the federal government has unsuccessfully fought RFRA’s application to the use of illegal drugs in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, and now in the health care context.  If Congress and the President intend a law to apply to everyone even if religious, they need to amend RFRA to exclude certain arenas (how about we start with child safety, pornography, and sex trafficking?), or whenever a law is passed, they need to exempt that law from RFRA’s reach.  As Chief Justice Roberts pointed out in Gonzales, under the Court’s Free Exercise doctrine, the federal government would have prevailed, but it voluntarily imposed on itself RFRA and so it had to live with the consequences.  Of course, this “voluntary” imposition of RFRA on all federal laws must be taken with a grain of salt, as Congress failed to ask the hard questions about RFRA and, therefore, had literally no clue of what its enormous impact would be, or of the agendas of the religious groups fighting (and rooting) for it.

Why the Hobby Lobby Reasoning Is Dangerous to Hobby Lobby’s Bottom Line and to the United States

The Hobby Lobby reasoning is also a hazard for for-profit companies, as Chick-Fil-A has learned the hard way.  It will not be returning to Emory University’s campus due to student protests over its anti-gay messages and financial commitments, and those of its owner, Dan Cathy.  Cathy has a solid First Amendment right to believe whatever he chooses, and to say it, but he has no right to anyone’s business.  When he tweeted dismay at the Supreme Court’s gay marriage decisions, the tweet was quickly taken down, presumably because those running the business, with a fiduciary duty to its profitability, seem to have figured out that making such statements turns patrons away, and that translates to fewer dollars.  Obviously, Emory is just one battleground for the elimination of homophobia, and the trends on that issue in the country will undermine Chick-fil A’s bottom line, if they have not already.

The same scenario is capable of affecting companies like Hobby Lobby.  The Green family has every right to believe and speak about their views on abortion and contraception.  But the women and couples who are shocked at the revived anti-contraception movement in the United States right now are not going to find Hobby Lobby worthy of their dollars.  By putting its religious beliefs at the front of its business image now, Hobby Lobby has opened the door for its competition, which does not choose to impose its religious beliefs on the corporation or its employees, to move into the market.  I have no doubt that A.C. Moore and Michael’s and others can fill the void created by Hobby Lobby’s insistence on making its religious beliefs its most famous factor.  Hobby Lobby’s board members, with their state-based fiduciary duties to the profit-making of the organization, might want to remember that women constitute over half of the population.  If not, I have no doubt that our competitive American markets can fill the gap.  When your products are fungible, as are Hobby Lobby’s, small matters, like controversial beliefs and an intent to impose them on non-believers, can hurt the profit margin.  That is an injury that RFRA will not cure.

Let’s assume, though, that Chick-fil A and Hobby Lobby assert that they don’t mind losing money from those who don’t share their religious beliefs.  Or to put it another way, they really only want business from those who share their religious beliefs.  That is the slippery slope on which the Tenth Circuit has set free exercise reasoning.

That isn’t capitalism, which, when working as it should, is driven by the quality of products and competition on price, regardless of the political or religious beliefs of the producer and purchaser.  It is Balkanization, and a first step on the path to the religious wars we in the United States have avoided so far.