Between the Lines of the Contraception Decision

ByJOHN SCHWARTZJUNE 30, 2014

Burwell v. Hobby Lobby Stores, Inc.

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Justice Samuel A. Alito Jr., writing for the court, declared that family-owned corporations like Hobby Lobby cannot be forced to pay for insurance coverage for contraception for employees over their religious objections. The ruling means that the Religious Freedom Restoration Act of 1993 applies to corporations, that the contraception requirement placed a substantial burden on companies like Hobby Lobby, and that the government has not chosen the least restrictive means to further a compelling governmental interest the most demanding test in constitutional law.

Roberts

Scalia

Kennedy

Thomas

Alito

Opinion of the Court

Justice Alito, having stated that the Religious Freedom Restoration Act does apply to businesses like Hobby Lobby and that the contraception mandate presents a substantial burden on such companies, he finds that the mandate fails the constitutional test. He writes that there are other ways that the government could ensure that women have access to the four contraceptives at issue in the case. In fact, Justice Alito writes, the system the government set up to allow employees of religious nonprofit organizations to gain access to such contraceptives would serve the world of for-profit corporations as well.

FROMPAGE 8OF THE DOCUMENT

Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.

Corporations qualify for protection of religious beliefs under the law, Justice Alito writes for the majority, because even though corporate personhood is a "legal fiction," those corporations are formed by human beings and they represent the people who are associated with them and their rights. Protecting the corporation thus protects the people who own and control it.

FROMPAGE 24OF THE DOCUMENT

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA's definition of "persons." But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of thepeople(including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

The government argues that the Religious Freedom Restoration Act should not be applied to publicly traded, for-profit corporations since such entities' "beliefs" might be hard to divine. Justice Alito said that question was simply not before the court, since the companies involved in the case are closely held corporations, each controlled by a single family. In any case, he said, corporate behemoths like IBM or General Electric are not likely to seek protection under the act.

FROMPAGE 35OF THE DOCUMENT

Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere "beliefs" of a corporation. HHS goes so far as to raise the specter of "divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric." Brief for HHS in No. 13-356, at 30.

These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholdersincluding institutional investors with their own set of stakeholderswould agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA's applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.

After determining that the law applies to companies like Hobby Lobby, the court moves on to determine whether the mandate imposes a "substantial burden" on the company's religious beliefs. Justice Alito notes that the violation of religious beliefs and the potentially heavy financial penalty of as much as $475 million a year for not complying with the law do, in fact, impose such a burden.

FROMPAGE 44OF THE DOCUMENT

Here, in contrast, the plaintiffs d ssert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Because the contraceptive mandate forces them to pay an enormous sum of moneyas much as $475 million per year in the case of Hobby Lobbyif they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.

Once the court has established the applicability of the law and the burden, it asks whether the government has pursued the least restrictive means of achieving its goal. This, Justice Alito says, the government has not done and looks to the Obama administration's own solution for religious nonprofits for its proof. A provision that excludes contraceptive coverage and allows the government to make the payments could be applied to Hobby Lobby and similar companies, he writes.

FROMPAGE 49OF THE DOCUMENT

HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Seesupra, at 9-10, and nn. 8-9. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. See 45 CFR 147.131(b)(4), (c)(1); 26 CFR 54.9815-2713A(a)(4), (b). If the organization makes such a certification, the organization's insurance issuer or third-party administrator must "[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan" and "[p]rovide separate payments for any contraceptive services required to be covered" without imposing "any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries."

Here Justice Alito answers the accusations in the dissent that Monday's decision will open the way for corporations to object to any medical procedure on religious grounds, or even to invoke faith in pursuing a path to racial discrimination or other forms of bigotry. He retorts, however, that any other efforts to invoke religious views will come up against the particular facts of the case and the legal framework behind the government's justification for such requirements. Prohibitions against racial discrimination, he writes, stand on much firmer ground.

FROMPAGE 52OF THE DOCUMENT

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Seepost, at 32-33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work-force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

Kennedy

Kennedy's Concurrence

Justice Kennedy's brief concurrence suggests that the decision is not as sweeping as Justice Ginsburg's "respectful and powerful dissent" would make it appear.

FROMPAGE 56OF THE DOCUMENT

It seems to me appropriate, in joining the Court's opinion, to add these few remarks. At the outset it should be said that the Court's opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. The Court and the dissent disagree on the proper interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but d agree on the purpose of that statute. 42 U. S. C. 2000bbet seq. It is to ensure that interests in religious freedom are protected.Ante, at 5-6;post, at 8-9 (GINSBURG, J., dissenting).

Ginsburg

Ginsburg's Dissent

Justice Ginsburg, in this forceful dissent against a decision of "startling breadth," argues that the Hobby Lobby decision will open the floodgates for corporations to "opt out of any law" except for tax laws, which have a higher level of constitutional protection, so long as they can cite sincerely held religious beliefs.

FROMPAGE 60OF THE DOCUMENT

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. Seeante, at 16-49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a "less restrictive alternative." And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.

The decision, Justice Ginsburg argues, disregards the beliefs and needs of employees and their dependents. Supporting the beliefs of one group of people behind a corporation its owners can harm other people, she writes, citing one of the fundamental principles of conflicting rights.

FROMPAGE 67OF THE DOCUMENT

The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations' employees and covered dependents. It would deny legions of women who do not hold their employers' beliefs access to contraceptive coverage that the ACA would otherwise secure. SeeCatholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 565, 85 P. 3d 67, 93 (2004) ("We are unaware of any decision in which . . . [the U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties."). In sum, with respect to free exercise claims no less than free speech claims, "'[y]our right to swing your arms ends just where the other man's nose begins.'" Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).

Justice Ginsburg presses the majority on its contention that for-profit corporations are protected by the Religious Freedom Restoration Act. Religious organizations and nonprofits can claim to be a unified community, but workers in a for-profit company may well have views and needs that are distinct from those of their employers a "key difference," she writes.

FROMPAGE 75OF THE DOCUMENT

Indeed, until today, religious exemptions had never been extended to any entity operating in "the commercial, profit-making world."Amos, 483 U. S., at 337.16

The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations.

Justice Ginsburg raises the specter of religiously based objections to such principles as racial integration, blood transfusions, certain medications and others that could create tangle in the lower courts. She scoffs that the majority "sees nothing to worry about." The court, she warns, has "ventured into a minefield."

FROMPAGE 91OF THE DOCUMENT

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 com- mercial 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, for- profit 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."

Continuing the examples of the kinds of religious objections that could wreak havoc with the legal system, Justice Ginsburg cites blood transfusions, vaccinations, and pills with a gelatin coating, which could offend the religious sensibilities of Jehovah's Witnesses, Christian Scientists, and Muslims, Jews and Hindus.

FROMPAGE 92OF THE DOCUMENT

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)?

What is the Religious Freedom Restoration Act (1993) and how does it affect this case?

What was Justice Ginsburg was referring to when she said that "The court, I feel, has ventured into a minefield"?

Is the decision of the court correct? Why?

The decision affects women's rights? If so, how?

How will the decision affect future decisions regarding religious beliefs?