Hobby Lobby, a chain of craft stores, was joined by Conestoga Wood Specialties, a business that specialises in making wooden cabinets, in challenging the contraceptive coverage requirements of the Affordable Care Act (2010), claiming that their businesses are run on Christian principles and the requirement violates the practice of their faith. At the crux of the issue was the notion that the Affordable Care Act (2010), and related regulations, require many employers to provide female workers with comprehensive insurance coverage including a variety of methods of contraception. Hobby Lobby Stores and Conestoga specifically objected to the inclusion of four types of contraception, including: intrauterine devices (IUDs), Plan B and Ella – four methods claimed to be akin to abortion (many scientists disagree). Other forms of contraception, including condoms, diaphragms, and sponges were not central to the objections.

The RFRA Reigns Supreme

The decision, issued on the last day of the Court’s term, reflected what has emerged as a dominant characteristic of the Court under Chief Justice John G. Roberts Jr. – a proclivity toward nominally incremental rulings with vast potential for great change. In a 5-4 ruling, the Court decided that the requirement under the Affordable Care Act (2010) that family-owned corporations pay for insurance coverage including these challenged contraceptions violates the Religious Freedom Restoration Act (1993) or RFRA, a federal law protecting religious freedom. Justice Samuel A. Alito authored the Court’s opinion and writes that the Religious Freedom Restoration Act (1993) does apply to businesses like Hobby lobby and the contraception mandate presents a substantial burden on such companies. Justice Alito comments that, “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.” Central to Justice Alito’s opinion are three core tenants:

Corporations are People

According to the Court, corporations qualify for the protection of religious beliefs under the law. 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. Justice Alito writes that “a corporation is simply a form of organization used by human beings to achieve desired ends … when rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.” The government has argued the the Religious Freedom Restoration Act (1993) should not be applied to publicly traded, for-profit corporations since such entities’s beliefs might be hard to calculate. Justice Alito argued that 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.

A foundational principle of corporation law is the notion that a corporation is a distinctly separate entity from its shareholders, possessing its own rights and obligations. This principle allows individuals to invest in a company, without risking their own personal assets beyond what they directly endow; it ensures that any liability generated by the company is not extended to the owners. This is especially beneficial for small, tightly owned companies like Hobby Lobby, where the owners are not at risk of being held responsible for any culpability their business may incur. The ‘trade-off’, is that business owners are not supposed to then treat their company as an extension of themselves. It does appear that business owners are now getting it both ways; while still retaining the benefits of liability insulation, they are also able to extend their own personal religious beliefs into the decisions made for the business, ultimately affecting its employees. The decision’s acknowledgement of a corporation’s religious liberty is consistent with Citizens United v. Federal Election Commission (2010), a ruling that affirmed the free speech rights of corporations.

A Substantial Burden

The Court, having determined that the RFRA does apply to companies like Hobby Lobby, moves on to determine whether the mandate imposes a “substantial burden” on the company’s religious beliefs. Justice Alito responds by writing, “here, in contrast, the plaintiffs do assert 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 money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.”

The Least Restrictive Means

The Court then proceeds to determine whether the government has pursued the least restrictive means of achieving its objective, considering the Obama administration’s own solution for religious non-profits. These entities have been excluded from contraceptive coverage, instead requiring the government to make the payments, a measure that could easily be applied to Hobby Lobby and similar companies. Justice Alito writes that the “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 … HHS has already established an accommodation for non-profit organizations with religious objections. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services.  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.”

Burwell v. Hobby Lobby Stores, Inc. - Pro-Life Protesters outside the Supreme Court

A Decision of Startling Breadth

Justice Ruth Bader Ginsburg’s scathing dissent raises alarm by referring to the decision as a radical overhaul of corporate rights, one that has the potential to be applied to all corporations and to countless laws. Justice Ginsburg in her dissent, makes the point that the Court had for the first time, extended religious freedom protection to the “the commercial, profit-making world”. The Justice argues that the decision would open the floodgates for corporations to “opt out of any law” except for tax laws (being grounded in higher level constitutional protections), so long as they can cite sincerely held religious beliefs, writing that “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. 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.”

Justice Ginsburg states that “the Court’s expansive notion of corporate personhood … invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths”, taking issue with the Court’s attempt to cabin its language to “closely held corporations”, stating that “its logic extends to corporations of any size, public or private.” She adds that corporations can now object to “health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work.” However, Justice Alito contends that its seems unlikely that publicly held “corporate giants” would make religious liberty claims; racial discrimination, he said, could not “be cloaked as religious practice to escape legal sanction.”

Justice Ginsburg contests that the spectre of religiously based objections to such principles including: racial integration, blood trasnfusions, and certain medications are now legitimately questionable. The Justice scoffs at the majority who “see nothing to worry about”, warning that the decision has waded us into a “minefield”. Justice Ginsburg writes, “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.” The Justice continues, “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)?”

Justice Alito attempts to address the dissent’s accusation that the decision will allow for corporations to object to any medical procedure on religious grounds, even invoking faith in the pursuit of racial or other discrimination. Justice Alito retorts, stating that any effort to invoke religious grounds will face the particular facts of the case and the legal framework behind the government’s justification for such requirements; writing “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. 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.”

Justice Anthony M. Kennedy’s brief concurrence suggests that Justice Ginsburg’s dissent, while powerful, is not as sweeping as suggested. “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 majority and the dissent disagree on the proper interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but do agree on the purpose of that statute.

While the logic of Justice Ginsburg’s dissent appears without fault, the pragmatic nature of the business world would hopefully provide some optimistic forecast of doubt regarding the pursuit of these far reaching claims. Having said that, the majority were unforatunely silent on the matter of possible LGBT discrimination, even after it was raised by the dissent, a fragment of society far smaller in size than many other historically discriminated groups.

 

 

 

 

 

 

 

A Fundamentally Flawed Interpretation

It is important to note that this was a statutory case, one not decided under the First Amendment’s religious protection clauses. The history of the Religious Freedom Restoration Act (1993) begins in the 1960s and 1970s when the Supreme Court adopted a more expansive interpretation of the Free Exercise Clause of the First Amendment. The precedents set in Sherbert v. Verner (1962) and Wisconsin v. Yoder (1972), stated that the government, even if not explicitly targeting religious groups, violates the Free Exercise Clause of the First Amendment if it imposes a substantial burden on religious practice; ensuring that the only way the government could intervene would be with a “compelling interest” and “no alternative forms of regulation” available. However, these precedents’s were replaced in 1990 with the 7-2 decision authored by Justice Antonin G. Scalia in Employment Division v. Smith (1990) that upheld a federal law banning the use of peyote by Native Americans, declaring that generally applicable laws can incidentally burden religious practices without violating the First Amendment, and the government is not required to submit any special justification for such laws. The public was outraged at the new Court precedent, declaring it “far too easy”, according to both sides of the political spectrum, for the government to burden the free exercise of religion and ultimately led to passing of the Religious Freedom Restoration Act (1993). The RFRA states that the government “shall not substantially burden” the exercise of religion without satisfying a demanding legal test. The act was championed by President Bill Clinton and passed Congress in 1993 with near unanimity.

In authoring his opinion, Justice Alito remarks that the RFRA marks “a complete separation from First Amendment case law”, claiming that the decision is not a “restoration” of the legal principles that were in force prior to the Smith case – a complete break from earlier law, a discontinuity. Justice Alito’s argument for this new interpretation is fundamentally flawed. The Justice notes that Congress amended the RFRA at a later stage, specifying that “exercise of religion” should be understood in a broad sense. The rationale for this clarification was to ensure there was no inquiry into the theological basis for any exemption requests, a principle that the courts had already been applying. The clarification, as understood, was not intended to remove the statue from the constitutional law that had existed prior to the Smith case – nothing in the statue or history says otherwise. Justice Ginsburg is correct in her dissent, claiming the majority’s interpretation of the statue is a “bold initiative departing from, rather than restoring, pre-Smith jurisprudence.” The Hobby Lobby decision diverges dramatically from the case law precedents of Sherbert and Yoder the RFRA was intended to restore. During the Sherbert era, the Supreme Court only accepted five cases of religious freedom exemptions, from eighteen, and rejected all cases brought by businesses. By claiming that the RFRA was written with a total break from decades of First Amendment jurisprudence, the Court has emancipated itself from any precedent that would otherwise have blocked the Hobby Lobby decision.

The most important precedent, that has been subsequently ignored, is United States v. Lee (1982), the rejection of an Amish employer who claimed an exemption from paying Social Security taxes. Written in the decision was, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” This precedent completely contradicts the Hobby Lobby decision; however, it was no obstacle as Justice Alito wrote “Lee was a [First Amendment] free exercise, not a RFRA, case.” It seems the far reaching ramifications of Justice Alito’s interpretation of history now include the compulsory ignorance of any decision made by the Supreme Court prior to the 1990 Smith decision with relevance to deciding the scope of religious liberty under federal law. All precedents that shaped the governing religious liberty in the United States before 1990 are now irrelevant.

 

 

 

 

 

The Response

The Obama administration has argued that the requirement to include comprehensive contraception coverage promotes public health and ensures that “women have equal access to health care services.” The Guttmacher Institute, a research and policy group, has said in a brief, that the requirement would have reduced the number of unintended pregnancies and abortions; Justice Ginsburg cited the brief in her dissent. The White House weighed in on the issue with Press Secretary Josh Earnest labelling the Court’s decision as “jeopardising the health of women employed by these companies” adding the “women should make personal health care decisions for themselves, rather than their bosses deciding for them.” Mr. Earnest urged Congress to look for ways to ensure all contraceptive options are available to the employees of companies affected by the ruling. The majority’s opinion however, may well have been influenced by the administration’s previous accommodation for non-profits.

The Supreme Court has now ordered lower courts to rehear any cases where companies had sought to deny coverage for any type of contraception. The Court has vacated two decisions by the US Court of Appeals for the Sixth Circuit – Autocam Corp. v. Burwell (2014) and Eden Foods v. Burwell (2014). Both cases, brought by Catholic-owned businesses, sought exemption from offering insurance that covered any of the twenty mandated forms of birth control listed under the requirements of the Affordable Care Act (2010). The Supreme Court has also compelled the US Court of Appeals for the District off Columbia to reopen a similar case –  Gilardi v. Department of Health & Human Services (2013).

While the corporatisation of our basic liberties is unsettling, the decision is consistent with the Roberts’ Court and their tendency to deliver decisions along partisan lines. The irony of the decision is that the Court’s permission for Hobby Lobby’s exemptions, means more Americans are receiving more of their health care coverage form the government – making Justice Alito the “least probable” enabler of incremental steps toward single-payer insurance.