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Hobby Lobby, Liberty, Empathy, and Dignity

7:01 AM, Jul 1, 2014 • By ADAM J. WHITE
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After a surprising run of 9-0 decisions, the Supreme Court ended its year the way we've come to expect: with hotly contested 5-4 splits. Most importantly, the Court finally decided Burwell v. Hobby Lobby, the closely watched fight over whether the Health and Human Services Department can force corporations to pay for their employees' insurance coverage of abortifacient contraceptives.

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Although Obamacare and the administration's regulations triggered this litigation, the primary focus of the case was much older statute, the Religious Freedom Restoration Act of 1993, as amended by the Religious Land Use and Institutionalized Persons Act of 2000.

Justice Alito wrote for the five-justice majority. (He had a pretty good day, in fact, writing for the five-justice majority in both of Monday's term-closing decisions.) The case presented a number of issues, and his opinion for the Court grappled thoroughly with each:

First, the Court needed to decide whether corporations are “persons” under the Religious Freedom Restoration Act. Because that Act covers “persons” but does not define what a “person” is, we look to the federal law's generally applicable “Dictionary Act,” which defines ”person” as including “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,” “unless the context includes otherwise.”

In this case, the Court had little trouble finding the plaintiff corporations to be “persons,” if only because the administration itself already conceded that the Religious Freedom Restoration Act does protect some corporations—namely, nonprofit corporations. The administration could not explain why only some corporations are “persons,” but not others. It is no answer to distinguish nonprofit and for-profit corporations simply by the fact that one pursues profits and the other doesn't. Anticipating criticism on this (as in Citizens United), the Court illustrated its point with examples difficult for the left to simply dismiss: 

For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for corporations to further humanitarian and other altruistic objectives … So long as its owners agree, a for-profit corporation may take costly pollution-control and energy-conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.

Nor would the Court exclude for-profit corporations from the Religious Freedom Restoration Act's protection simply to prevent other corporations from bringing frivolous religious-liberty lawsuits. In this case, there was no serious dispute that the corporate plaintiffs—the Hobby Lobby and Conestoga Wood companies, each a "closely-held" company—sincerely held the religious beliefs of their owners, the Green and Hahn families. If someday religious liberty lawsuits are filed by large corporations instead of closely held ones—and despite HHS's and the dissenting justices' predictions, it seems rather implausible to expect a wave of such lawsuits—then the courts will be well equipped to analyze, under state law, what a corporation's official beliefs are, and whether they are sincerely held. “If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims”—as the courts do under the Religious Land Use and Institutionalized Persons Act—“there is no reason to believe that Congress limited RFRA's reach out of concern for the seemingly less difficult task of doing the same in corporate cases.”

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