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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.

US Supreme Court

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.”

The second question before the Court was whether the administration's contraception mandate “substantially burdens” the companies' and owners’ exercise of religion. Here, too, the Court answered “yes.” The mandate requires employers either to financially support abortifacient contraception, in violation of the owners' and companies' religious beliefs, or to pay nearly $500 million in annual fees, or to simply drop employee health coverage altogether and send employees to the HHS exchanges (which would itself impose costs on the companies and owners, in terms of HHS fees and competitive disadvantages as the companies try to recruit employees). 

The third and final question for the Court was whether the mandate was the least burdensome way for the government to achieve its aims, or whether the government could achieve its aims through less burdensome means. (The Court assumed, for present purposes, that the government's aims were sufficiently compelling, a standard imposed by the Religious Freedom Restoration Act.) Here, too, the Court saw a clear answer: the mandate was not the least restrictive means, because the government could give these companies the same accommodations that are given to nonprofit corporations: to opt out of the mandate, leaving the insurance companies to pay for the employees' coverage. Or, for that matter, Congress could pay for this giant new entitlement program itself.

The Court's analysis of this point is informed, implicitly if not explicitly, by the administration's seemingly arbitrary and politicized implementation of Obamacare. As the Court notes, no shortage of companies and organizations enjoy opt-outs and exemptions from this mandate and other requirements of the law. In light of that track record, HHS strains credulity when it asserts that this mandate absolutely must be imposed on these particular persons. As law professor Jason Mazzone observes, much of the Court's opinion reads as a defense of the Constitution's separation of powers, bringing rogue regulators to heel under the rule of law: “I recognize of course that not everyone will agree that deference to Congress warrants today's outcome” writes Mazzone, “but rarely has the Supreme Court so thoroughly trounced an agency's interpretation of congressional directive.”

Justice Ginsburg wrote the opinion for the dissent—no surprise, given Ginsburg's attention to issues of abortion specifically, and liberal feminist causes more generally. (Recall that the dissenting opinion for which she is perhaps most famous was in the Lily Ledbetter pay-equality case.) In her Hobby Lobby dissent, she disagreed up and down with each of the Court's aforementioned conclusions, and in all of that a few points stand out.

First, the dissent makes a surprisingly bold prediction—namely, that the Court's recognition of these two companies' religious beliefs will result in a flood of anti-regulatory sham litigation brought by other corporations. “Little doubt that RFRA claims will proliferate,” Justices Ginsburg and Sotomayor assert, “for the Court's expansive notion of corporate personhood—combined with other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.” Color me skeptical, to say the least. The courts are well-equipped to thwart spurious lawsuits alleging phony religious beliefs, and corporations know better than to venture sham litigation under the banner of religious liberty. 

Second, Justice Ginsburg and the other dissenters' characterization of religious belief and believers is stark and, frankly, disturbing. In outlining the sorts of religious “exemptions” that could proliferate, the dissenters begin first with a fifty-year-old case of racial discrimination, and then a thirty-year-old case of discrimination against unmarried women. Do the dissenting justices actually see those lawsuits as reflecting serious religious arguments of our time (or even of the time when the cases arose)? They seem to define religion in America by reference to society's basest impulses, rather than the vast mainstream of religious Americans, let alone its best exemplars.

Similarly, the dissenters shrug off the penalties and burdens that employers bear under the HHS mandate. The plaintiffs' objections to funding abortifacient contraceptives are, to the dissent, “too attenuated to rank as substantial." And HHS's requirement that the companies either pay for the contraceptive coverage or incur hundreds of millions of dollars in fees are, to the dissent, “no command that Hobby Lobby or Conestoga purchase or provide the contraceptives,” but rather, merely “calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive plans.” Those glib characterizations of the case reflect a stark lack of—let's just say it—“empathy” among the dissenting justices.

Empathy is also lacking in the dissent's aforementioned dismissal of the religious, moral, or ethical motives of for-profit corporations. The justices assume that private companies and their owners are motivated exclusively by dollars and cents: ”Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations.” One wonders if these justices have ever encountered small business owners, or even large business owners, in their own lives. Yes, profits are the primary goal of private corporations -- but they are hardly the only goal. (By the same token, the dissent breezily assumes that nonprofit corporations are motivated only by altruistic objectives—an equally naive assertion that is readily disprovable by more than a few nonprofits.)

Justice Alito's opinion for the Court, and Justice Ginsburg's opinion in dissent, were not the only important statements in Monday's case. Justice Kennedy joined the majority opinion in full but also wrote separately to stress the real stakes of the case. Not the dangers of over-delegation, as I wondered after oral argument, but the importance of “dignity”—specifically, the dignity of business owners and companies that were being denied accommodations, despite their deeply held and sincere religious beliefs, while so many other interests were being accommodated by the administration. Kennedy sees this—albeit with his usual rhetorical flair—as a violation of basic “dignity,” and even as “demeaning”: 

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. … 

“[T]he American community is today, as it long has been, a rich mosaic of religious faiths.” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (Kagan, J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means.

Kennedy's opinion must be put in context. Perhaps the most significant constitutional law book on the market right now is The Civil Rights Revolution, the belated third volume of Yale law professor Bruce Ackerman's hugely influential We the People series. The heart of Ackerman's argument is that the Supreme Court's defense of civil liberties, from Brown v. Board of Education and other cases, was largely a defense of human dignity—a stand against institutionalized “humiliation” of persecuted minorities. Racial segregation's deepest harm wasn't to young African-American students' education—it was to their dignity, amidst the South's institutionalized humiliation of the persecuted minority.

Ackerman is advancing this particular account of history at this particular moment in time because he sees it as a crucial argument against modern state limits on same-sex marriage. He's not alone, as others in the academy and in the federal courts (both lawyers and judges) are adopting his arguments and rhetoric. And not just on the left—professor Josh Blackman is pursuing an argument of dignity and civil rights, too, from a conservative-libertarian direction. 

Ackerman's approach may well resonate among the justices, especially Justice Kennedy, when same-sex marriage cases return to the high court. But I suspect that Ackerman and others were less aware of the fact that this argument works not just for same-sex marriage, or other rights that Ackerman and others support, but also for religious liberty. The administration's conduct made it difficult, if not impossible, to see the HHS mandate as anything other than an utterly gratuitous attack on the sincerely held beliefs of religious Americans, an opportunity to single out, humiliate, and burden religious minorities seen as increasingly out-of-step with the arc of history. 

Even now, Ackerman and others on the left might deny that Hobby Lobby was a case about religious believers' dignity. I could suggest that this reflects their own lack of “situation-sense,” to borrow Ackerman's preferred term. The right to freely exercise religion is a civil right, too, even if it doesn't fit in Ackerman's “civil rights revolution.” But the key is not what I think (nor what Ackerman thinks), but what Justice Kennedy thinks—and he clearly saw the threat to religious believers' “dignity” here. 

Kennedy's focus on “dignity” may prove to be the heart of the seemingly inevitable collision between the Religious Freedom Restoration Act and same-sex marriage, a collision that Ginsburg's dissent expressly identifies as the latest iteration of prior efforts to use religion as a cover for racism and sexism. Same-sex couples seek to hire photographers, bakers, and other services for their weddings; more than a few of those service providers decline to do business with them, based on their religious objections to same-sex marriage. Litigation ensues, brought either by the couple to punish the company for refusing to do business with them, or by the company to challenge laws that would force them to do business with the couple. No matter how the litigation arises, the case raises serious “dignity” concerns on both sides of the courtroom.  

In Hobby Lobby, Justice Kennedy believed that the dignity of both sides, the employers and the contraception-seeking employees, could be vindicated by giving these companies the same accommodations enjoyed by other groups, or through federal fiscal support for this new entitlement program. But how will he strike the balance in the same-sex marriage cases? A year from now, we may well know. 

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