The Sebelius v. Hobby Lobby Stores case argued before the Supreme Court last week raises the question whether the Hobby Lobby chain of arts and crafts stores is entitled, under the Constitution or the federal Religious Freedom Restoration Act (RFRA) to be exempt from the requirement in Obamacare that employers who provide health insurance to their employees include in the insurance policy certain forms of contraceptives, the use of which for some persons (including the owners of Hobby Lobby) is forbidden by religious principles. Many commentators, ourselves included, predict that Hobby Lobby will win the case, and be found to be exempt from the Obamacare requirements by virtue of RFRA.
Yet at the oral argument, many Justices, especially Justices Ginsburg and Sotomayor but also Chief Justice Roberts, pressed Hobby Lobby’s lawyer, Paul Clement, on just how far his religious-exemption argument might extend. Right out of the gate, Justice Sotomayor asked him about religiously-inspired objections to vaccines and blood transfusions. Moving beyond healthcare mandates to other federal regulations of employers, Justice Kagan asked, a few moments later: “So another employer comes in and that employer says, ‘I have a religious objection to sex discrimination laws’; and then another employer comes in, ‘I have an objection to minimum wage laws;’ and then another, child labor laws. And [under] all of that [the federal government can win only if it satisfies] the exact same test [for RFRA you describe today,] which you say is this unbelievably high test?
If, as we expect, Hobby Lobby prevails, it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. In the space below, then, we try to identify how an opinion in Hobby Lobby’s favor should—and should not—be crafted.
Do Corporate Entities Enjoy Protection Under the RFRA?
Let us turn first to one key question under RFRA—whether its protections extend beyond natural persons to corporate entities like Hobby Lobby (a closely held for-profit “S” Corporation owned by the Green family.) We think RFRA can be found to apply, but that the Court should make clear that RFRA is designed to protect religious freedom of conscience and that a corporation itself does not have a conscience in the same sense that human beings have a conscience.
Some commentators argue that just as the Supreme Court held that corporations are persons for freedom of speech purposes in the Citizens United case, corporations must be considered persons in free exercise or RFRA cases as well. We think that analogy is mistaken, and that grounding a decision in Hobby Lobby’s favor on this analogy would be unnecessarily expansive. Freedom of speech in the context of political expenditures by corporations is an instrumental right. We protect it because of its utility for democratic decisionmaking. In Citizens United, the Court held that corporations are persons for free speech purposes for explicitly instrumental reasons—because corporations can present voices or perspectives that should be part of the marketplace of ideas.
Freedom of religion and conscience are dignitary rights. Our society protects them not because doing so serves some instrumental goal, but because accepting and living one’s life based on religious beliefs, or deciding not to live a religious life, is part of what it means to be human. Government must respect the right of human beings to make self-defining decisions and to live their lives authentically in light of those choices.
Corporations have no such dignitary rights. They do not love. They do not feel guilt or shame. They have no conscience. They will not stand before G-d to answer for their sins after they die, because they are not human. They are artificial entities that exist in perpetuity. We are inclined to agree with Chief Justice Rehnquist’s dissenting opinion in Pacific Gas and Electric Co. v. Public Utilities Commission of California (a compelled speech case), where he wrote: “Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an ‘intellect’ or ‘mind’ for freedom of conscience purposes is to confuse metaphor with reality.” Bluntly, if we are talking about corporations in a formal sense, corporations do not have religious liberty rights.
However, in many cases corporations can be viewed as the representative of or—as our UCLA colleague Eugene Volokh has suggested—a “proxy” for individual persons and groups. Whatever protection society provides to the corporate form is intended to recognize and protect the dignity not of the entity but, of the entity’s owners or managers. An incorporated church or a religious non-profit organization satisfies this criterion. A closely-held corporation like Hobby Lobby that is not publicly traded, and that is owned by a small number of actual individuals, does so as well.
Thus, the Court could hold that RFRA protects the conscience of the owners of Hobby Lobby notwithstanding their decision to do business in a corporate form. But it should make it clear that no such argument justifies protecting the conscience of publicly-traded corporations such as General Motors or Exxon. While Justice Roberts intimated that closely-held corporations could be distinguished from publicly-traded corporations, and that the protection provided to the latter by RFRA need not be decided in this case, a more prudent and limited opinion, and one that reflects the proper understanding of dignitary rights, could resolve this question in definitive terms once and for all.
The Strict Scrutiny Test, and (the Very Limited) Relevance of Statutory Exemptions in Assessing the Weight of the Government Interest
The most important issues that the Court will have to navigate in drafting a narrow opinion relate to the standard of review imposed by RFRA. To satisfy RFRA, the government must justify its regulations under strict scrutiny; that is, the government must demonstrate that its regulations are the least restrictive way to further a compelling governmental interest. Hobby Lobby wins its case if the government fails on either prong of this rigorous standard of review.
It is important in this case to examine each of these prongs separately. Several arguments presented to the Court attempt to establish that the government lacks a compelling interest to require the cost-free provision of medical contraceptives to employees who are provided health insurance. We think these arguments are wrong on the merits, in part because they are extremely broad and expansive in their implications. If the Court concludes that the government lacks a compelling interest in Hobby Lobby, many religious claimants might successfully challenge a very wide range of laws under RFRA.
In response to the somewhat obvious intuition that women need access to contraceptives for important birth-control and health reasons, and the fact that often the safest and most effective contraception is also among the most expensive, Hobby Lobby argues that Obamacare’s preventive medicine regulations are so underinclusive that the government interests can’t be compelling. The fact that businesses that employ fewer than 50 full-time employees are not required to offer any health plan to their employees, and the fact that many current health plans that do not include cost-free preventive medicine coverage are “grandfathered in” under Obamacare so that they continue to operate without change are said to demonstrate that the government itself does not treat the public health interest it is asserting as if it were a particularly important concern.
We think Solicitor General Verrilli effectively challenged this contention during oral argument. The fact that a law is underinclusive often has little bearing on whether the government’s goal that it furthers is compelling. Important civil rights laws, such as Title VII (which prohibits race discrimination by employers), often exclude small businesses from their coverage. Indeed, most laws have more exceptions to them, or limitations to their applicability, than their basic purposes might suggest. It is common for government to serve very important interests while moving forward in a piecemeal fashion to accommodate other non-trivial interests, particularly when it is breaking new regulatory ground. And new legislative programs serving compelling interests, such as the American with Disabilities Act, may be phased in to their operation without the phase-in suggesting that the interest being served is unimportant. It is hard to argue that the government lacks a compelling public health interest in making preventive medical services more available because—in the herculean task of transforming the provision of health care in the United States—it has grandfathered in some existing plans to protect important reliance interests and to facilitate a smoother transition to the new health care system. Most problematically, if the Court holds that the government lacks a compelling state interest in Hobby Lobby, all laws with exclusions, exemptions, limitations in applicability or phase-in periods would be vulnerable to similar RFRA challenges.
Narrow Tailoring—and A Plausible Narrow Way Out in the Hobby Lobby Dispute
The second prong of the RFRA standard—which asks whether the preventive medicine regulations are the least restrictive means to accomplish the government’s compelling state interest—provides a much narrower foundation for ruling in Hobby Lobby’s favor. Here, one arguably less restrictive means by which the government could achieve its goals that seemed to generate support from several Justices at oral argument was for the government to exempt employers asserting religious objections from the regulations, while arranging for the employees of such exempt employers to receive medical contraceptive insurance coverage from an alternative source—with either the insurance company providing the coverage or the government itself incurring the cost of these benefits. Indeed, the government already grants an accommodation to religious non-profits (recall that Hobby Lobby is for-profit), and requires health care insurers to provide the disputed coverage to the employees of the accommodated non-profit employers at the insurer’s own cost. A similar accommodation could be extended to closely held for-profit employers who object to the regulations on religious grounds.
It is important to note here that this alternative would be unavailable in most cases where a for-profit business seeks a religious exemption from a general regulation; the preventive medicine insurance coverage mandated by the Affordable Care Act is an unusual regulatory scheme in important respects. The benefits provided by the Act—generally available and affordable health insurance—are fungible, intangible goods that can be provided by either the public or private sector. And the Act’s beneficiaries have no reason to care about the source of the insurance.
This is not your ordinary workplace regulation. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans, whether they are in a workplace or not. Employers are used simply as a convenient instrument to distribute healthcare to many Americans—but that is incidental to the ultimate purpose of the legislation. Indeed, for many Obamacare backers, providing these benefits through the healthcare plans of private employers was the second-best alternative. A government health insurance (“single payer”) program was thought by some to be the most desirable and efficient way of guaranteeing affordable health insurance in our society.
In other circumstances, including many mentioned by the Justices at oral argument, if the government has to bear the cost of providing religious accommodations to employers, the price tag might be prohibitively high. Or any meaningful accommodation might involve interventions that are unacceptably complex and individualized. Or, as Paul Clement pointed out, in some cases—such as RFRA claims for exemptions from civil rights laws prohibiting discrimination—the unavoidable harm caused by granting an accommodation would simply be too great. But none of those problems would arise if the government provided supplemental insurance coverage (or required health plan insurers to do so) to the employees of religiously-exempt organizations like Hobby Lobby. Indeed, if the government provided the insurance coverage, it could limit its costs in doing so by requiring any accommodated business (e.g., Hobby Lobby) to contribute whatever funds it saved by not providing the contraceptive coverage to some other public good identified by the government that would be consistent with the employer’s faith, and on which the government would otherwise be spending the public’s money. (Exempt employers would be required to offer alternative contributions to satisfy their civic obligations, in much the same way that a religious pacifist exempted from conscription as a conscientious objector would be required to perform alternative service as a condition to receiving an accommodation.)
A decision in Hobby Lobby’s favor on these “least restrictive alternative” grounds would not be completely sui generis. It would apply to some other cases. But it would be the narrowest basis for a holding in Hobby Lobby’s favor. At a minimum, it would guarantee that the Court’s decision would provide no direct support to RFRA claims for exemptions from civil rights laws.
Would Granting Hobby Lobby an Accommodation Violate the Establishment Clause?
There is one final issue about the scope of any opinion the Court will issue that has to do with a constitutional question concerning the scope of RFRA. Several commentators and amici have argued that it will violate the Establishment Clause of the First Amendment if the Court rules in Hobby Lobby’s favor. They argue that the Establishment Clause imposes a cap or limit on religious accommodations. An accommodation violates the Establishment Clause if it goes too far and imposes too heavy a burden on third parties or the general public. Such a violation will occur if Hobby Lobby is exempt from the medical contraceptive regulations, the argument runs, because Hobby Lobby’s employees will not receive valuable public health benefits to which they would otherwise be entitled. Religious exercise cannot be privileged by accommodations if doing so imposes such a heavy cost on third parties.
One expansive rejoinder to this argument challenges the contention that the employees of an exempt employer will be harmed by the accommodation. The employees had no “right” to these benefits, after all. The government was not obligated to mandate the provision of no-cost health insurance for preventive medicine to these employees or anyone else. Indeed, the benefits are available only because of the very law to which Hobby Lobby claims to be exempt. The government isn’t harming or taking something away from employees if it (through the enactment of RFRA) decides not to provide as many benefits as it might, in order to protect religious liberty.
We think this rejoinder is overly broad and mistaken on the merits. An analogy to an early religious freedom ruling by the Court might help make the point. In some ways, the Establishment Clause argument here is the flip side of the Free Exercise claim upheld in Sherbert v. Verner, the seminal case in which the Court held that the state violated the free exercise rights of a Seventh-day Adventist when it denied her unemployment compensation because she refused jobs that required her to work on the Sabbath. In that case, as in the Affordable Care Act setting, the government was under no obligation to provide unemployment benefits to anyone, and therefore might be thought to have been free to deny benefits to persons who refused appropriate job offers. The fact that the state created the benefit scheme through an act of political discretion made no difference to the Court’s free exercise analysis in Sherbert, however, and we think it should make no difference to the application of the Establishment Clause in Hobby Lobby.
As a general matter, we believe that the loss of generally available benefits to which one would otherwise be entitled is a cognizable harm for both Establishment Clause and Free Exercise Clause purposes. Thus, denying an individual a generally available benefit to which she would otherwise be entitled, in order to accommodate some other person’s religious practice, is a cognizable harm for Establishment Clause purposes. And denying an individual a generally available benefit to which she would otherwise be entitled if she obeyed the dictates of her faith is a harm for Free Exercise purposes.
There is, as should be clear from our earlier analysis, a narrower ground for rejecting the argument that a judicial finding in Hobby Lobby’s favor will violate the Establishment Cause. If the Court finds in favor of Hobby Lobby, it will basically hold that if the government wants to provide medical contraceptive insurance coverage for the employees of religious employers, it will have to choose some way to do that other than by substantially burdening the employer’s religious liberty. The Court may then conclude that this holding, standing alone, does not violate the Establishment Clause because the government still retains alternative ways to accomplish its goals without burdening either the religious exercise of objecting companies or third parties. The government, as we suggested, could pick up the cost of the insurance coverage itself, and provide coverage to the employees of religiously-exempt organizations directly, or it could assign that obligation to health plan insurers—as it has done with the accommodations for religious non-profits. (And again, if it wanted to, the government could seek—and then redistribute—money from the exempt for-profit companies who are saving dollars by not offering the coverage.) This rejoinder to the Establishment Clause concern might not be available in many cases, but it is available in Hobby Lobby, and therefore should be invoked as a basis for narrowly deciding this case.
So, U.S. v. Lee doesn’t matter, apparently, since the government there also could have itself gave the exemption & in fact later did. Putting aside there really isn’t a “substantial burden” here — as various people noted — on the corporate owners (“closely owned” also has various line drawing issues, which is why many corporate law types find going that route even as to them problematic here .. but hey, if we are trying to find the least bad way for them to win, maybe).
The religious “restoration” act here in effect would be applied not to restore but overturn the status quo ante. And, will further, for “closely held” corporations, the riddled with exemption issue cited in Lee, since the government can for any number of cases just give the employees the benefit — Alito near the end even raised the point that that can be true for vaccines. There are a range of benefits that the principle can apply to as well, so it won’t just be ACA.
Finally, sure, the government can pick up the cost. That is the option HL has now — they pay extra money in taxes since not covering the employees will cost the government money. Employment based health care provides a united whole with various benefits. Which is why it has been in place with government support for generations. This least bad win in effect provides a free lunch.
The exemptions as Verilli noted promotes the compelling interest of associational liberty of religious groups etc. The idea here is to expand that to for profits of a certain unclear reach too, who lest we forget have hundreds of stores with thousands of employees. For a claim that even a single Amish farmer couldn’t win back in a day.
Why do folks assume the substantial burden prong? Not every burden is substantial. Also, why does the court have to accept Hobby’s wrong science that the drugs cause abortion? Also, this article does not address the issue of vaccines or other medical items.
Although a well-argued article in many respects, I think it glosses over one of the most important arguments against the government showing a compelling interest under RFRA – the contested policy interest is imposed solely by regulation, and not by Congress in the statute itself. Indeed, there is some evidence that ACA would not have passed if such expansive birth control measures were explicitly included, since a decisive block of Senators held their votes until abortion was excluded. The particular forms of birth control objected to by Hobby Lobby are abortifacient pharmaceuticals in large part. When the statute is silent on the supposed interest, and legislative intent suggests a majority of the Senate would not have voted for ACA if this regulation was included, it seems to me that is relatively good evidence that Congress did not consider that part of the contraceptive mandate regulations to be a compelling interest (quite possibly, not even a policy goal at all).
Granting an employer his right to exercise his right to religion, violates the employees right to freedom from religion guaranteed by the First Amendment.
How so? No one has to work at Hobby Lobby, it is a choice the individual makes. As it stands the owners of Hobby Lobby are given no choice in the matter.
You are wrong in every respect. Hobby lobby does have the choice of whether or not they want to provide health care at all. They can elect not to provide it and have the employees buy it on the exchange and pay the penalty.
And yes, there are people that do have to work for hobby lobby. Their are not a plethora of jobs out there and I’m sick and tired of the libertarian argument that the ONLY control over employer abuse should be quitting your job and hoping for the best.
Especially since you’d howl if the exact same reasoning were used in reverse. If employers didn’t want an employee who steals they should hire someone else.
Garbage! Both employees AND employers should be subject to the rule of law. If I can’t take my religiously mandated nap in the middle of the day or smoke my religiously required peyote at 2pm every day then the employer can’t hoist his religious views on me either.
You are so full of nonsense your argument is beyond satire. It does not matter how many jobs are available in the marketplace. The fact is that there are thousands of pages of regulations protecting workers.
The owners of Hobby Lobby provide good wages and comprehensive insurance coverage already. The insurance they provide already covers contraception, what they are not willing to provide are abortifactants, a small subset that can result in the death of a human being. And fetuses are human beings. They are alive, they take in food and expel waste, they have DNA that is distinct from the mother so it is not her body at issue.
Your comparison to hiring someone who steals is inane, inaccurate and just plain stupid. Employers try to find employees who do not steal but screening methods are not infallible. What happens in real life (you know, that place outside of your momma’s basement) is that companies fire those who steal from them, an action that is completely within their rights.
The issue isn’t whether you can take a nap or smoke peyote but whether you can force someone to provide it for you. You seem to think employers have no rights to run their own business as they see fit. That is ridiculous and would result in many people forgoing owning a business and investing their money in stocks, bonds and other assets that don’t carry such a burden. That would really help now wouldn’t it? Instead of providing good paying jobs and helping their communities they could sit back and not have to deal with all the bother. Where would their workers be then?
If you don’t like how the owners of Hobby Lobby conduct their business don’t buy from them. It’s that simple. You don’t have the right to force them to do as you would like because if you did then someone who holds positions anathema to you could force you to comply with their demands.
So in your world the employer has rights to dictate not just what you do while in their employ, but what you do in your doctors office and in your own private life?
First off, moron it is not Hobby Lobbies health care any more than it is hobby lobbies pay. Health care is an EARNED benefit that belongs to the EMPLOYEES not Hobby Lobby. Therefore Hobby Lobby has no more say as to what you do with it then they have a say in what you do with your pay. So i assume that because you believe that an employee can’t use birth control at home if their employer objects to it then I assume you also believe that an employer can mandate against you drinking at home if they have a religious objection? After all, you seem to be making the idiotic argument that the employer- because they pay you – has the right to decide what you do with your compensation.
Secondly it is a fact that NONE of the birth control options in question are abortifactants .
Secondly Scalia has ALREADY ruled that a private citizen cannot skirt laws based on religious restrictions. So therefore you, and Scalia are saying that corporations have more rights than you!
The fact is that you’re setting us down a dangerous precedent in which employers get to dictate how you live your life not just at work, but at home as well. If they can mandate what you do with YOUR earned benefits, why can’t they mandate what you do with your earned pay?
What’s absurd and satirical is the SC ruling and you’re reasoning. My peyote analogy was COMPLETELY on point in that Scalia (rightly) stated that a private citizen cannot use his religious beliefs to skirt existing laws when it comes to the private smoking of peyote.
Now the same guy (wrongly) says that a privately held company can skirt existing laws in order to impose THEIR religious beliefs on others.
Also your absurd beliefs that 1. employer-employee laws favor the employees and that 2. That the employer is paying for the employees health care shows exactly where your head is: That employees should be regarded as little more than slaves- subject to the whims and values of their employers not just at work but at home and in their doctor’s office.
Because health care is not some kind of gift from the employer, it is an earned benefit. It belongs to the employee, NOT the employer. It is provided as PART of your compensation in return for your labor. Therefore an employer mandating what you do with it in your own free time is just as nauseating as an employer mandating what you do with your pay.
Also, you’re even more absurdly arguing that an employers false faith is more important than an employees reality. Because NONE of the contraception in question are abortifacients. The Supreme Court is absurdly arguing that firmly held belief of an employer- even if wrong- trumps the real health concerns of an employee. That my firmly held belief that the sun revolves around the earth trumps your knowledge that it doesn’t if i’m the one paying you.
Also, since when did Republicans hold as responsible the people who offer the product? If Hobby Lobby is somehow responsible for their employees VOLUNTARY use of contraception, why isn’t a gun store owner responsible for a patrons voluntary use of a gun?
This whole decision is a great evil on woman and on the nation. All Hobby Lobby had to do was not offer health care and allow women to buy insurance on the exchange and those that want coverage that excludes contraception (offered on every exchange) could get it and those that want the contraception coverage could buy that. Now, their employees are barred from getting subsidized for coverage on the exchange because their employer offers it and they’re also barred from getting contraception. I thought you guys were the party of freedom?
By your own words you show you do not understand the issues involved and they also show you are not arguing them in good faith. You have been corrected and you continue in your willful ignorance. Goodbye.
@ Insipid, your argument is insipid, vacuous and without merit. Hobby Lobby prevails tomorrow 5-4; take it to the bank.
Yeah, and I’m sure you completely accept Roe V. Wade. Because apparently in your world the SC is ALWAYS right.
I can’t reply to Insipid’s latest nonsense under it’s post so I’m doing so here. Insipid seems to believe that the decision (which has been correctly decided) would prevent someone from using the contested methods of contraception, which is false. The decision does not mean the employer can prevent anyone from practicing whatever form of birth control they desire. What it means is the employer doesn’t have to pay for it.
Since that is the case the rest of insipid’s argument falls and need not be addressed. However, knowing the mindset of those like insipid I know that if I ignored the nonsense they would take it as if I couldn’t rebut it I will have to do.
You are incorrect the contested methods do cause the deaths of fetuses.
I do not agree that companies should have the right to tell a worker what they may or may not do in the privacy of their own home, and this decision does not give them that right.
Courts, however, have said that an employer may force employees to not smoke in their own home so it is not that big a step to ban other activities. I think this gives employers way too much control over employee lives.
The fact is I do not want companies, or the government – which has way too much power over us as it is, to tell me what I can or cannot do based on my religion. What’s next a government inspector to go around and make sure we’re all saying our nightly prayers in order to see if someone is as religious as they claim? Such buffoonery.
As pointed out earlier, the employer is NOT paying for health care. The employee is through his labor. It is not some gift bestowed upon the employee.
My statement that these forms of birth control do not cause the death of embryos is a fact. In fact in the decision- which you obviously haven’t read- Alito stated that the fact that they are not abortifacients is irrelevant. Merely the fact that the plaintiff’s THINK it is. So the very decision you’re applauding doesn’t even state that they are abortifacients.
Furthermore, if you actually read Ginsburg’s dissent, this decision does actually address your open market kinnard by pointing out the fact that some of these forms of birth control are prohibitively expensive- costing as much as a half-months pay for a minimum wage worker. So in effect the employer IS prohibiting them from buying it themselves especially since they are now prevented from buying insurance on the exchange.
But let’s assume for a moment that you are right. That I, as an employer should not be “forced” to pay for necessary health care that my sky-god does not like. If that “principle” is so important, why shouldn’t it apply to every employer? Why can’t a Jehova’s witness employer prohibit blood transfusion? Why can’t a scientologist employer prohibit psychiatric care? Why can’t a Christian Scientist insist that you rely SOLELY on faith as part of your employment contract?
Plus there’s other “sins” involved in healthcare that do not involve procreation. The bible says some bad things about gluttony. What if I in my humanitarian piety feel uncomfortable “paying for” your gluttony. Doesn’t that give me the right to refuse to pay for for your gastric bypass surgery, diabetes treatment, heart treatment, high-blood pressure medication etc. etc.?
Plus why are only the “firmly held” convictions of religious fanatics important? Shouldn’t an atheist vegan, be able to force you to pay for your own damn chemo if he has a “firmly held” belief that your chemotherapy, developed through animal testing, should not be used?
Of course the SC in the decision skirted ALL these issues by basically saying “Nuh- uh”. They said IN THE DECISION that this great principle of religious choice is limited to ONE religion- Christianity- and ONE religious objection- birth control. So the SC has codified in law Christianity to be the first among equals in religions and Woman to be second-class citizens- entirely at the whims of their employers for their health care needs.
So any decision a court makes is therefore right? So people were wrong to argue against Dredd Scott? Plessy V. Ferfuson? Roe V. Wade. The SC are not our ruling body.
What is “vacuous and without merit” is this decision. You can take that to the bank.
So if I want to exercise my religious freedom, I have to resign my job. Yet it is not a substantial burden on my religious freedom to be forced from a job.
How does that even make sense?
In addition to NevadaStev’s question, 1st Amendment guarantees freedom OF religion from a government establishment/supporting of one. The twisting of that to an individual right of freedom FROM religion entering one’s own space via private methods is not supported.