Hobby Lobby: 5-4 Vote Upholds Religious Freedom for Some Companies
The Supreme Court’s religious freedom decision yesterday, its last day in session for the year, is notable for both what it does and doesn’t do.
It does say that Hobby Lobby and its sister Mardell Christian & Education bookstore chain, as well as an unrelated company, Conestoga Wood Specialities, whose case the Supreme Court heard concurrently, do not have to supply four specific forms of birth control to their female employees because of the company owners’ religious beliefs.
It does not say that no business owner has to provide them. Nor does it say (as some lower courts have done) that the federal government has not demonstrated any compelling reason that it is in the public interest to have birth control drugs and devices, elective sterilization, and “morning after pills” dispensed to women without any cost to them.
Nor does it impose the religion of the three companies’ owners (Evangelical Christians and Mennonites, respectively) on their employees.
What is does is simply find that the HHS “contraceptive mandate” does not meet the clear, simple requirements of the Religious Freedom Restoration Act (RFRA).
Passed in 1993 by a bipartisan Congress, RFRA says that the federal government may not violate a person’s religious freedom unless it has a compelling interest that serves the public good, and then may do so only through the least restrictive means possible.
Justice Samuel Alito wrote the majority opinion for Justices Roberts, Scalia, Kennedy, and Thomas (Justice Kenney also wrote a separate, concurring opinion). Justice Ginsburg, Sotomayor, Breyer and Kagan dissented.
The Court found that, according to established law, closely-held corporations could be considered “persons.” Laws considering corporations to be persons always do so, he wrote, for the benefit of the actual persons who run them — not for the benefit of the corporations outside of their owners. Although HHS argued that corporations cannot worship, Alito said, that fact is “quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.” (pp 16-17)
The Court found that the mandate instituted a “substantial burden” on the corporate persons involved in the suit, both by requiring them to violate their religious beliefs (itself a substantial burden) and by the fines that would be imposed it they refused to do so.
Moreover, Alito wrote, the HHS argument attempted to move the Court’s decision from the firm footing of whether or not the mandate would cause the plaintiff to violate their religious beliefs to an entirely different question — whether those beliefs were reasonable.
“This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another,” he wrote. “Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.”
As to whether the government has an interest in dispensing no-cost contraception and sterilization to all American women, the Court remained equally mum.
“We find it unnecessary to adjudicate this issue,” wrote Alito. “We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” (p. 40)
“The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”
Noting that the “least restrictive means” standard is “exceptionally demanding,” Alito wrote that the HHS could have arranged to dispense contraception and sterilization in ways that didn’t restrict religious freedom. For instance, he wrote, HHS could simply have bought them for any woman whose employer would not.
“This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown… that this is not a viable alternative,” he wrote. (p. 41)
Moreover, he wrote, HHS has already developed a program it considers viable to accommodate the employees of religious organizations that it could have expanded to include for-profit companies.
While acknowledging that many religious organizations are suing HHS over this “accommodation,” Alto said that whether or not it would ultimately be found to comply with RFRA was not important. HHS, he wrote, was satisfied that it did, extending it to for-profit companies would not violate their owners’ religions and “serves HHS’s stated interests equally well.”
Alito further wrote that the decision applied only to this mandate, and not to any medical drug or procedure that a company might object to. Moreover, he wrote, it did not apply to a corporation attempting to use religious beliefs to mask racial prejudice. It does not endanger the entire Affordable Care Act (which he described as a tax without calling it one), an objection he said the federal government had raised for the first time.
Finally, he wrote that HHS had raised objections that were not against the challenge to the mandate, but to RFRA itself. “The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”
The decision does not do what many had hoped it would do: Declare that the mandate was unconstitutional for all corporations. On the other hand, it did not do what many others wanted: Declare that for-profit corporations were in the sole business of making money, and could not be considered persons with religious freedom rights (even if they could be considered persons for other reasons). Only five of the nine judges agreed with it.
The result leaves room for more suits and will doubtless be debated for years to come. But for now, religious freedom advocates — including the many Catholic groups suing over the same mandate — are taking it as a victory.
“Today we celebrate freedom; we celebrate this epic ruling handed down by the Supreme Court in favor of religious freedom,” wrote Bryan Kemper of Troy (OH)-based Stand True Pro-Life Ministries and Youth Outreach Coordinator of Priests for Life, which has sued HHS over the mandate and pledged not to comply if it loses. “SCOTUS has given us hope today as they upheld the rights of all Americans to be free from the tyranny and oppression of our government when it comes to our faith… Hobby Lobby is victorious today, and we at Stand True and Priests for Life celebrate with them and patiently await a ruling in our case.”
The Archdiocese of Cincinnati issued a statement saying that, “In opposing the HHS mandate, the Church has done so not only on behalf of religious institutions, but also out of concern for the rights of business owners who are forced to violate their conscience or pay a fine. As Pope Francis said in Evangelli Gaudium, “no one can demand that religion should be relegated to the inner sanctum of personal life.” In other words, religious freedom is more than just the freedom to worship, but also the freedom to live our faith in the world. The Supreme Court today has recognized that basic human right.”
“The Supreme Court recognized that Americans do not lose their religious freedom when they run a family business,” said Lori Windham, Senior Counsel for The Becket Fund for Religious Liberty and counsel for Hobby Lobby. “This ruling will protect people of all faiths. The Court’s reasoning was clear, and it should have been clear to the government. You can’t argue there are no alternative means when your agency is busy creating alternative means for other people.”
The case is significant for the more than 50 non-profit organizations that have sued HHS over the mandate, she added, including the Little Sisters of the Poor. “In two different respects, the Supreme Court strongly signaled that the mandate may be struck down in those cases too. First, it rejected the government’s argument that there was no burden on the Green’s religious exercise because only third parties use the drugs. Second, it held that the government could simply pay for contraception coverage with its own funds, rather than requiring private employers to do so. The handwriting is on the wall. The Court has strongly signaled that the mandate is in trouble in the non-profit cases, too.”
For a PDF file of the decision, click here.
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