Advocates for religious freedom won a major victory in the Supreme Court of the United States on June 30. Justice Samuel Alito’s opinion for the court in Burwell v. Hobby Lobby Stores holds that the Religious Freedom Restoration Act (RFRA) requires the federal government to accommodate the claims of the owners of for-profit, closely-held corporations who say that their religious beliefs forbid participating in or administering insurance plans that cover contraceptives, such as IUDs, that prevent implantation of the fertilized ovum.
Writing for himself, the Chief Justice, and Justices Scalia, Thomas and Kennedy, Justice Alito’s majority opinion resolves three important statutory issues under R.F.R.A.:
1. RFRA protects religious believers who elect to organize their business activities in the corporate form.
Hobby Lobby holds that religious believers do not forfeit their federal statutory right under RFRA “to exercise their religion” when they organize and operate as “closely-held,” for-profit, business corporations. Expressly rejecting the government’s position that only private individuals and non-profit corporations can plausibly argue that they have a right “to exercise their religion,” the court holds that “[b]usiness practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within” both the constitutional and statutory definitions of the phrase “exercise of religion.”
In the court’s view, “[a] corporation is simply a form of organization used by human beings to achieve desired ends,” including business, politics, education, religion or charity. Because corporations “cannot do anything at all” without the human beings who bring it to life, attempts to discuss the rights of business corporations “ ‘separate and apart from’ the human beings who own, run, and are employed by them” cannot be justified.
Justice Ruth Bader Ginsburg’s dissent on this point was joined only by Justice Sonya Sotomayor. They would hold as a matter of principle that forfeiture of one’s right “to religious exercise” is simply one of the costs of doing business in the corporate form. Why, they ask, should an “individual [who] separates herself from the entity [by incorporating] and [thereby] escapes personal liability for the entity’s obligations” ever be permitted to claim that her personal religious freedom is infringed by government regulations of corporate conduct (p. 19)?
Justices Ginsburg and Sotomayor also fear the practical effect of the court’s ruling. Quoting Forbes’ “America’s Largest Companies, 2013, they correctly observe that “ ‘closely-held’ is not synonymous with small,” and complain (also correctly) that the court’s holding exposes millions of workers to the risk that their corporate employers and co-workers will try to use the court’s holding in Hobby Lobby to negate their right to contraceptive coverage under the Affordable Care Act. Justice Alito dismisses that possibility as “unlikely.”
Because they would have ruled that Hobby Lobby’s and Conestoga’ s religious liberty claim failed on its merits, Justices Stephen Breyer and Elena Kagan refused to join this part (III-C-1) of the Ginsburg-Sotomayor dissent.
2. RFRA ensures that believers who enter the commercial marketplace as buyers and sellers of goods and services “for profit” have exactly the same right under federal law to bring their beliefs and values to bear on their business practices as those who make money in the “marketplace of ideas.”
Though Hobby Lobby is a statutory case, RFRA is no ordinary statute. Congress adopted R.F.R.A. in 1993 and President Clinton signed it because there was a bipartisan consensus that religious freedom claims made by minority or unpopular religious groups are not taken seriously, either by the Supreme Court itself, or by the politicians and bureaucrats who decide the nature and scope of religious exemptions. State legislatures that have adopted state versions of RFRA have drawn the same conclusions.
The contraceptive mandate involved in Hobby Lobby was exactly the type of government policy that R.F.R.A. was designed to cover. After Congress refused to address the “religious exemption” issue in the Affordable Care Act, the task of deciding which groups would have to pay for contraceptives and which would be accommodated fell first to the Obama administration.
Because there is no political incentive for any administration to antagonize its base by accommodating unpopular, but sincerely held, conscientious objection claims, the administration understandably took the default, “liberal” position that “for profit” corporations could claim no right “to exercise religion.” The “war against women” rhetoric employed by the administration and other groups was used thereafter to demonize opposition.
Hobby Lobby is thus a ringing reaffirmation of the principle of equal protection of the laws. There are many “for profit” businesses, both large and small, whose owners explicitly bring their beliefs and values to bear as they shape the culture and social priorities of their businesses. Among them are the founders of Google and the Ochs-Sulzberger family that owns The New York Times.
Before Hobby Lobby it was assumed that The Times had a constitutional right to shape its “for profit” editorial policies in the “marketplace of ideas” in any manner that advances its mission and is otherwise consistent with existing law. After Hobby Lobby, vendors like the Green family, who sell art and craft supplies and Christian books, and the Hahn family, who sell custom wood cabinets, have the same rights as Google and the Ochs-Sulzbergers to bring their values to bear on their “for profit” business practices.
3. RFRA requires that the courts and executive branch accommodate good-faith (but politically unpopular) religious beliefs and practices
The most important question left open by the Hobby Lobby decision is its practical dimension: When and how must the government accommodate good faith religious beliefs and practices that are “substantially burdened” by government programs and edicts? As might be expected, the majority limited its answer to the specific claims made by Hobby Lobby and Conestoga Wood Products, leaving the dissenters to speculate on the “parade of horribles” that would necessarily follow a decision in Hobby Lobby’s favor.
The dissenters’ answer was clear and unequivocal: religious beliefs that would limit access to abortion and contraception should never be accommodated by employers. Justices Ginsburg gave three reasons for her categorical “no.”
First, and most important for Justice Ginsburg, access to employer-provided contraceptives “without cost sharing” is one of the key means by which Congress and the Executive Branch sought to protect “the ability of women to participate equally in the economic and social life of the Nation.” When they arise in the workplace, conscientious objection claims should be viewed as direct attacks on the equality and reproductive health rights of working women. Accepting such views as the basis of legitimate religious exemption claims under RFRA will, in her opinion, encourage others to demand “so-called ‘conscience’” exemptions from laws that forbid discrimination on the basis of race, sex and sexual orientation.
Second, Justice Ginsburg and the dissenters view any accommodation of the “so-called ‘conscience’” rights at issue in Hobby Lobby as an unwarranted (and potentially unconstitutional) effort by religiously motivated business owners to “override significant interests of the [their] employees and covered dependents.” The dissenters would hold that both RFRA and the Constitution require the court to “balance” the religious claims of believers against the financial, liberty and equality interests asserted by those who prevailed on those arguments in the political process. Otherwise, asks Justice Ginsburg, “how does the court divine which religious beliefs are worthy of accommodation and which are not?” It is such a good question that the majority reserves it for consideration in a future case.
Third, Justice Ginsburg and the other dissenting justices would have held that refusal of employers and co-workers to pay for the contraceptives—and, by implication, the abortions and perhaps the lethal injections—of their employees, fellow-workers and their dependents is simply “too attenuated” to qualify as a “substantial burden” on anyone’s right “to exercise religion.”
Money is fungible, say the dissenters, and the use to which women put that money once it has been placed into the “undifferentiated funds that finance a wide variety of benefits under comprehensive health plans” is simply not the business of those who are compelled to put up the money.
Stripped to its essentials, the Hobby Lobby case is about money and control. A “single payer” program similar to Medicaid would (at least in theory) use tax receipts to cover all “necessary” drugs and medical services. Well-settled first amendment case law would leave conscientious objectors with no recourse in such a program.
The “individual mandate” embedded in the ACA was also designed to cover all “necessary” drugs and medical services, but Congress had to pay for them by forcing individuals and businesses to use their own hard-earned money to buy these services for themselves and others. In National Federation of Independent Business v. Sebelius (NIFB), a five-justice majority led by Chief Justice John Roberts upheld the “individual mandate” as a valid exercise of Congress’ power to tax. By implication it also upheld the power of Congress to levy tax penalties on those who refuse to comply.
Hobby Lobby asks whether Congress intended to impose those tax penalties on religious believers who operate closely held, for-profit corporations in the commercial marketplace. Reading the A.C.A. in light of RFRA, a five-justice majority that includes the chief justice holds that it did not.
There is a good deal of irony in this outcome. Catholics have supported the concept of universal health care for generations, and supporters of the ACA inside and outside of Congress took great pains to reassure progressive Catholics and evangelical Protestants that both religious freedom and pro-life aversion to public funding for abortions would be respected.
When the Obama Administration decided to use the “essential services” mandate to force employers and co-workers to pay for F.D.A.-approved birth control drugs and devices that have abortifacient effects, the stage was set for a major confrontation. When the administration decided to give the narrowest possible reading to the rights of religious organizations, the Catholic Church and Christian business professionals felt betrayed. They fought back.
In Hobby Lobby, the administration lost. Tax fines are the only effective tool the federal government can use to compel universal compliance with the “essential services” mandate. They are now off the table and will be for the foreseeable future.
And it’s not over. More cases are in the pipeline. Stay tuned.
Robert A. Destro is a professor of law and the director of the Interdisciplinary Program in Law & Religion at the Catholic University of America's Columbus School of Law in Washington, D.C.