At the conclusion of yesterday’s 90-minute Supreme Court oral argument in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Stores Corp. v. Sebelius, most observers found themselves in seemingly familiar territory. The Court appeared to be divided four/four on liberal/conservative grounds, with Justice Anthony Kennedy holding the balance of power.
The most conservative Justices pretty clearly accepted, while the most liberal Justices pretty clearly rejected, the plaintiffs’ argument that the Religious Freedom Restoration Act (RFRA) entitles them to an exception from federal regulations that implement the Affordable Care Act (ACA). Those regulations require large- and medium-sized companies to offer their employees health insurance that covers contraception, or else face stiff financial penalties. Contending that doing so would violate their religious principles, the plaintiffs argue that RFRA applies, notwithstanding the fact that they operate their businesses as corporations.
Is it surprising that Hobby Lobby looks like it will cleave the Court along ideological lines? In a sense, no. After all, this was the third consecutive Term in which President Obama’s Solicitor General, Donald Verrilli, squared off against former President Bush’s Solicitor General, now private lawyer, Paul Clement. Two years ago they battled over the constitutionality of the ACA’s individual mandate. Last year they locked horns over the Defense of Marriage Act. And so Hobby Lobby appears to be a natural conclusion to the trilogy.
Yet the very familiarity of the ideological divide in Hobby Lobby should be perplexing, at least initially. After all, not that long ago, claims like the one made by the current plaintiffs were less ideologically charged. Indeed, to the extent that there was any discernible ideological pattern, it was the opposite.
In 1990, in Employment Division v. Smith, Justice Scalia wrote an opinion for a mostly conservative majority, holding that the First Amendment’s Free Exercise Clause is not even implicated when the government applies a religion-neutral law in a way that happens to interfere with someone’s religious freedom—in that case, the freedom of Native Americans to use peyote in a religious ritual. Meanwhile, the mostly liberal Smith dissenters offered an impassioned defense of religious freedom.
What changed in the ensuing two and a half decades? Why do conservatives now champion religious exceptions, whereas liberals are wary of them? No single factor explains the shift, but in the balance of this column I will explain how the argument for religious exceptions flipped from liberal to conservative.
How Different Is RFRA From the Free Exercise Clause?
Before looking for ideological explanations for the apparent breakdown of the Justices in Hobby Lobby, we should ask whether there is anything clearly different about the legal issues the case presents that might explain why it has provoked such a different reaction from the one that Smith provoked. The obvious place to start is the fact that Smith involved the First Amendment’s Free Exercise Clause, whereas Hobby Lobby involves a statutory claim under RFRA.
But that difference has little explanatory power. For one thing, Conestoga Wood makes both a RFRA and a Free Exercise claim in the Supreme Court, whereas Hobby Lobby preserved its Free Exercise claim in the appeals court. The plaintiffs argue that the ACA and the implementing regulations are so full of exceptions that they should not count as “neutral” within the meaning of Smith.
Even if the Court does not reach the constitutional claim directly, as Justice Elena Kagan noted during the oral argument, the Free Exercise Clause casts a shadow over any case involving RFRA because, as its name suggests, RFRA is a statute that implements a constitutional test.
Perhaps most importantly, the mere fact that Hobby Lobby is a statutory case would not explain the ideological breakdown. Some statutory cases divide the Court ideologically. Others do not. Thus, one needs to look beyond the statutory nature of the claim in Hobby Lobby to understand why it is an ideologically charged case.
Five Factors That Give Hobby Lobby Its Ideological Cast
If the fine differences between RFRA and the Free Exercise Clause do not explain the emergence of religious exceptions as a conservative cause, what does? I would identify five factors.
First, Hobby Lobby provokes some of the same ideological druthers as other cases involving laws that restrict corporations to a greater degree than they restrict natural persons. The campaign finance cases, including Citizens United v. FEC, stand out. There, the Court’s majority rejected the notion that corporate speech distorts the marketplace of ideas, viewing corporations as no less entitled to free speech than other actors. Likewise in Hobby Lobby, the Court’s conservatives are skeptical of the government’s argument that a business corporation is not the sort of entity that can have or exercise religion.
Second, the culture war of the last couple of decades shattered the bipartisan alliance that gave rise to RFRA. In the ensuing years, the right has increasingly sought to portray Christian religious traditionalists as a beleaguered minority. The fictional “War on Christmas” celebrated each December on FoxNews typifies this attitude, while in the courts, it manifests itself in ever more extreme claims. The plaintiffs in Smith were objecting to a law that forbade them from conducting a religious ritual. The plaintiffs in Hobby Lobby, by contrast, do not claim that the government is forcing them to engage in any practice that their religion forbids; they are not, after all, required to use contraception. They are not even complaining that they are required to provide contraception. They are complaining that, as a condition of operating their business, they must provide health insurance that offers their employees contraception. Liberals who were willing to enact RFRA to protect minority religions from direct interference have started to balk at the idea of a religious right that goes that far.
Third, although Hobby Lobby involves contraception, many of the most prominent contemporary exceptions controversies concern gay rights. In that context, religious traditionalists seek a right to opt out of a norm that society in general has increasingly come to regard as fundamental. If Hobby Lobby pits religious liberty against equal access to public health, the gay rights cases make clear that the stakes more generally are liberty versus equality. In both gay rights cases and more broadly, conservatives tend to give greater weight to liberty, while liberals tend to give greater weight to equality. Indeed, that difference practically defines the distinction between contemporary American conservatives and liberals.
Fourth, Hobby Lobby triggers the Justices’ various views about abortion, a point that Mr. Clement tried to emphasize in discussing conscience clauses that excuse religious objectors from performing abortions. Indeed, in an important sense, Hobby Lobby itself is an abortion case, because the plaintiffs say they do not object to providing health insurance covering all contraception, only those methods of contraception that prevent implantation of a fertilized egg, and thus can be understood as a form of abortion. The Court remains deeply and ideologically divided about abortion; thus, it should not be surprising that those divisions show up in Hobby Lobby.
Fifth, Hobby Lobby involves the ACA, a law that conservatives have fought at every turn, in every possible venue. Although Hobby Lobby does not present the Court with an opportunity to invalidate the ACA in whole or in part, it does provide the conservative Justices with an opportunity to deny the Obama Administration some of the fruits of its victory in National Federation of Indep. Business v. Sebelius in 2012. And for Chief Justice John Roberts, perhaps Hobby Lobby offers the opportunity to show that his vote to uphold the core of the ACA in that case was an uncharacteristic departure from conservative orthodoxy, but that he is now back on the team.
To be clear, none of the foregoing factors would provide a legal justification for any particular Justice’s vote in Hobby Lobby. But for over a century, astute legal analysts have understood that the legal justifications that judges put in their opinions do not always provide a full explanation for why they voted the way they did. When the Court divides ideologically, we must look beyond strictly legal reasons.