Law and the Created Order
7/1/14 at 08:38 AM 1 Comments

Hobby Lobby: The Morning After

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Protestors outside of the United States Supreme Court Building the morning that the Court was to hear oral arguments in Sebelius v. Hobby Lobby, now styled Burwell v. Hobby Lobby.

The Supreme Court’s decision in Hobby Lobby v. Burwell no doubt represents a victory for the cause of religious freedom. If the Court’s minority had had one more vote the Green and Hahn families would be faced with some very difficult choices in the weeks to come. As it stands, for the first time the Supreme Court of the United States affirmed that a corporation is a “person” with rights to freely exercise religion. As a result of this decision entrepreneurs like the Greens and the Hahns need not forgo the benefits of the corporate form in order to conduct their businesses in accordance with the convictions of their consciences. This is good news, but it is important to keep a few things in mind when evaluating this decision.

First, despite the positive results in this case, we must be aware that this is a temporary victory, a single battle in a war with many more fronts. This case may have been the most prominent case involving the Affordable Care Act since NFIB v. Sebelius (the challenge to the Affordable Care Act that ultimately held it to be constitutional) , but it dealt with a very narrow issue that will not in any way impede the larger implementation of Obamacare. The case filed by the Little Sisters of the Poor that challenges the Department of Health and Human Services contraceptive mandate at issue in Hobby Lobby from a slightly different angle will be heard in the Fall. A challenge to IRS regulations working its way through the courts has promise as a spearhead to pave the way for individual states effectively to “opt out.” Hobby Lobby mayprove to be a momentary victory applicable to a relatively small number of businesses.

Second, this case is not a constitutional case in the truest sense. In fact, the majority states in its summary that consideration of the underlying First Amendment issues is unnecessary.[1] While the First Amendment is the relevant provision of the Constitution that gives rise to cases involving the free exercise of religion, but at the heart of Hobby Lobby is the definition of a single word found in two statutes.

The Religious Freedom Restoration Act dictates the test that federal courts, including the Supreme Court, must use in deciding cases related to the exercise of religion. When a person’s right to freely exercise his religion is encumbered by a law, RFRA requires that a court must determine whether the interest furthered by the law is a legitimate governmental interest, and, if so, whether the law utilizes the least restrictive means to further that interest. RFRA makes no mention of corporations, only persons, but in a second statute Congress has indicated that when it says “person” anywhere in the law, it intends to include corporations. The Court determined that RFRA applied because these corporations are persons within the meaning of the law. By providing an alternative scheme for the employees of non-profit corporations to obtain cost-free contraceptives, HHS provided evidence that there is, in fact, a way to ensure that those with health insurance provided by companies like Hobby Lobby, Mardel, and Conestoga Wood Specialties do have access to all FDA-approved contraceptives at no cost to themselves. Because this was decided on the basis of statutory interpretation (i.e., the Court made the decision based on laws passed by Congress, not on the basis of rights protected by the Constitution), a change in the statute could effectively gut this case and send the Greens and Hahns back to the beginning to litigate the truly challenging and complex constitutional issues at play in this case. It would not be surprising to see Congress pressured to revamp RFRA, which the Hobby Lobby Court acknowledges far exceeds that which the Court has historically required.[2]

Third, and related to the second, it is interesting that the Court rested its decision on the second prong of the RFRA statute and not the first. The first prong, as mentioned above, requires that the court determine that the goal of the law in question be to further a “compelling government interest.” If the law does in fact further such an interest then it still must do so in a way that is the least restrictive way available to the government. Rather than determine whether the availability of four FDA-approved contraceptives (in addition to the already available sixteen) constitutes a “compelling government interest”, the majority assumes as much and considers only the second prong of the RFRA test.[3]

Justice Kennedy’s concurring opinion provides a clue as to why the Court sailed past this issue. Kennedy’s five-page concurrence says very little of substance, but on the second page he writes, “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” It is quite possible that Justice Kennedy would have concurred only in the judgment, but not the opinion had the other four in the majority pressed the issue of whether the case at bar truly presented a “compelling government interest.” Kennedy inserts the descriptor “legitimate” to the statutory language and provides examples as to why the availability of all FDA-approved contraceptives is “necessary to protect female health.[4] We should be thankful that the majority reached this compromise, because a plurality decision would have had much less impact and weakened the decision substantially.

The Court made it clear that Hobby Lobby presents a narrow question. Not surprisingly the decision presents a narrow holding. The majority explicitly lists ways in which the decision should not be construed and precisely limits the reach of this decision to closely-held corporations, which are often family-owned, and not publicly traded on a stock exchange.[5] This is justice for the Greens and the Hahns, but there is still much work to be done by those who value the liberties that our Constitution protects. We cannot afford to spend so much time celebrating the victory in one battle that we lose sight of the next one ahead.

[1] Burwell v. Hobby Lobby and Conestoga Wood Specialties v. Burwell, Nos. 13-154 and 13-356, slip op. at 49 (U.S., June 30, 2014).

[2]Hobby Lobby, Nos. 13-154 and 13-356, at 17.

[3]Id. at 40.

[4]Id., Kennedy, J concurring at 2.

[5]Hobby Lobby, Nos. 13-154 and 13-356 at 49.

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