

©A.M. Stan




As I have outlined before, the argument by Hobby Lobby and the other employers in the cases, Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties v. Burwell is that the contraceptive "mandate" imposed by the Department of Health and Human Services as part of the Affordable Care Act violates their rights under the Religious Freedom Restoration Act of 1993. Under the RFRA, federal regulations and future statutes  (unless specifically exempted) are not permitted to "substantially burden" a "person's" religious beliefs unless the the government does not have a less restrictive means of achieving a compelling interest. The majority holds that the contraceptive mandate—which requires health plans administered by employers to include coverage, without copayment, for a range of prescription birth control methods—cannot be applied to Hobby Lobby based on these standards. Its arguments, however, fail at every step. Let us review:

Secular, for-profit corporations cannot exercise religion. The majority cites no precedent on behalf of its assertion that secular, for-profit corporations can be "persons" under RFRA. This should not be surprising. As Justice Ruth Bader Ginsburg observes in her dissent: "The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities." The owners of Hobby Lobby and the other litigants want to have it both ways, receiving the protections of a corporation when it comes to financial liability, but remaining individuals when it comes to the question of whether they have to comply with neutral legal requirements. This argument doesn't make any sense.

There is no "substantial burden" on the religious freedom of religious employers. Even if one accepts for the sake of argument that Hobby Lobby can be a "person" for RFRA purposes, the biggest problem with its argument has always been the necessity for the challengers to show that the contraceptive "mandate" imposes a "substantial burden" on its religious beliefs. It is extraordinary implausible that Congress intended for any bare assertion of religious conflict to trigger strict scrutiny for every federal regulation. It is proper for the courts to be highly deferential on the question of whether a litigant's religious beliefs are sincere, but whether the burden on these beliefs is substantial is an inquiry the courts are not merely permitted but obligated to make. This inquiry should dispose of the challenge to the mandate, because in this case the burden on employers is trivial. The ACA's regulations do not require anybody to use contraceptives contrary to their religious beliefs, and the employers are not implicated in the decision to include contraceptives as part of the package that employers must provide employees in order to maintain the tax benefits of paying employees in health insurance in lieu of wages. The triviality of the burden involved here is particularly obvious, given that Hobby Lobby covered several of the contraceptives it now challenges in its employee insurance package until 2012—an alleged burden onits religious beliefs that it failed to notice until it became convenient for a larger political purpose. That's pretty much the definition of an "insubstantial" burden.  

The majority ignores the burden on third parties. The intent of RFRA was to restore the state of free exercise law as it existed prior to Oregon v. Smith.  But under these precedents, as Justice Ginsburg points out, "[a]ccommodations to religious beliefs or observances...must not significantly impinge on the interests of third parties." This is a major problem for the majority's opinion, because it has the effect of denying "legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure." While the burden of the contraceptive "mandate" on employers is trivial, the burden the majority's exemption creates on employees is substantial. By holding that the former trumps the latter, the majority goes far beyond what Congress intended in RFRA.

There is no viable "least restrictive means." The burden the majority's ruling places on the statutory rights of employees is particularly important because it flies in the face of the holding that the government has less restrictive means of achieving its ends. (The least restrictive means test must take third party interests into account.) In an attempt to get around this, the majority asserts that the government can avoid the problem by providing contraception directly to employees when employers have a religious exemption. The first problem with this proposed alternative is that it undermines the ACA's goal of minimizing the administrative hurdles employees face in order to secure health insurance benefits. The second problem is that the argument proves too much. As the dissenters argue, will the taxpayers have to send a check to employees if employers feel that minimum wage laws violate their religious beliefs?

The majority opinion Is almost comically unprincipled. Justice Ginsburg's dissents notes that, on its face, the majority opinion represents a "decision of startling breadth." If taken seriously, the decision means that any simply assertion of religious conflict can provide corporations with a means of exempting themselves from neutral statutory requirements. Both Justice Alito's majority and Justice Anthony Kennedy's concurrence, however, run away from these implications in a way that will be familiar to anyone who's read Kennedy's unsigned opinion in Bush v. Gore.  "[O]ur decision in these cases is concerned solely with the contraceptive mandate," says the majority, meaning that it does not necessarily apply to other statutory requirements.  

This may be true but, if so, it's particularly damning of the majority's decision. Today's opinion reflects not a principled judgment about the meaning of RFRA but the Republican majority's policy opposition to the ACA, and its failure to take the rights and interests of the women employees affected by its decision seriously. That these justices may not apply the same logic when the mandate is for something other than contraception isn't much of a defense of their holding.  


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