Hobby Lobby

First thing to note—Hobby Lobby was not decided under the Free Exercise Clause of the First Amendment.

Rather, the case was decided under the Religious Freedom Restoration Act, a civil rights law passed by a nearly unanimous, bipartisan majority in both Houses of Congress in 1993.

Let me repeat that. In 1993, RFRA “passed the House unanimously and the Senate 97 to 3 and was signed into law by President Clinton!” [Wikipedia]

So, RFRA reflects a nearly unanimous, bipartisan support for religious liberty.

RFRA provides the following test to protect religious liberty:

“(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.”

Moreover, RFRA defines the “exercise of religion” as including “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

And RFRA further provides that its protection of religious exercise must “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”

So RFRA is a federal civil rights law that protects religious exercise not just a little bit, but to the max!

As we discuss the Hobby Lobby case, keep in mind that Congress instructed the courts to construe RFRA’s protection of religious exercise “to the maximum extent!” 

So let’s break RFRA down into its component parts and try to figure out how it works in any particular case:

•    “Person’s exercise of religion”—the law protects a “person’s” exercise of religion.
•  The law is triggered whenever Government “substantially burdens” a person’s exercise of religion.
•    If a law, such as Obamacare, imposes a substantial burden on a person’s religion, it will be struck down unless the Government demonstrates that the law’s application to the person asserting religious liberty is “the least restrictive means “of “furthering a compelling governmental interest.”

So, Obamacare passes, HHS writes a rule requiring employers to cover all FDA approved “contraceptive methods and sterilization procedures,” and Hobby Lobby and some other closely-held, corporate businesses object because their sincerely-held religious beliefs forbid them from providing any type of contraceptive that operates after the moment of conception. So, basically, they have religious objections to providing coverage for the morning after pill (Plan B), the week after pill (ELLA), and IUDs because they believe these methods of contraception are, in effect, abortafacients because they operate after conception.

So the issue before the Court was to apply RFRA to Hobby Lobby’s claim against the contraceptive mandate.

I.                  Is a Closely-held, “For Profit” business a “Person” Under RFRA

Remember, RFRA protects the religious exercise of a “person.”

So the first issue before the Court was whether a closely-held corporation, such as Hobby Lobby, is a “person” protected by RFRA.

                                The Dictionary Act

RFRA is a federal civil rights law and Congress has passed something called the Dictionary Act (1 USC sect. 1) which provides that “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise …the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

Justice Alito concluded that the Dictionary Act governs the issue of RFRA’s coverage because there was absolutely nothing that suggests that when Congress enacted RFRA it intended to “depart from the Dictionary Act definition” of person as including corporations.[this was edited from your opinion--but it is there]

Notice that the decision to include corporations as person was made by Congress, not by the Supreme Court. Congress said whenever it uses the term person, in any act of Congress-- such as, for example, RFRA -- the term person includes corporations, companies, and similar business entities.

Justice Alito emphasized that “it is important to keep in mind” that the purpose of corporate law “is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends….And protecting the free-exercise rights of corporations like Hobby Lobby…protects the religious liberty of the humans who own and control those companies.”

II.                   Does the Contraceptive Mandate Impose a Substantial Burden on Hobby Lobby’s Exercise of Religion

Under Obamacare, if an employer offers a group health insurance plan that does not cover all of the contraceptives required by the Contraceptive Mandate, it must pay a penalty of “$100 per day” for each employee covered by the plan.

In Hobby Lobby’s case, the penalty would be roughly $475 million per year.

Or, if they simply dropped all health care coverage, they would have to pay a penalty of $26 million per annum.

That is a pretty substantial burden to pay for exercising one’s religious beliefs, and the Court held that “the mandate clearly imposes a substantial burden” on Hobby Lobby’s religious beliefs concerning contraceptive coverage under the Company’s health insurance policy.

III.                  Compelling Interest and Least Restrictive Means Analysis

Once the Court concludes that the Contraceptive mandate has imposed a substantial burden on Hobby Lobby’s religious liberty, the burden now is on the Government, on HHS, to demonstrate that the application of the law to Hobby Lobby is advancing a compelling governmental interest and is the least restrictive means of furthering that compelling interest.

This is the Gauntlet of Superlatives that the Government must run through to justify imposing the contraceptive mandate over Hobby Lobby’s religious objections.

So is requiring religious employers to cover free contraceptives for all their employees a compelling state interest?

Perhaps it is a legitimate state interest; perhaps an important state interest.

But is the contraceptive mandate a compellingly important governmental interest,

an interest of the highest order,

one of the most important purposes of our national government?

Indeed, would the contraceptive mandate have passed if it had been written explicitly into the ACA bill that was pushed through Congress with not a single vote to spare?

Could it pass Congress today?

Or could it only have been imposed by unelected bureaucrats in the Department of Health and Human Services?

If it could not have passed Congress, is it fair to say that the Contraceptive Mandate is a national interest of the highest order, not merely important but compellingly important?

Again, this case is not about whether women have access to the full range of FDA approved contraceptive products; it is only about whether Congress and HHS may force religious employers to ensure that their employee insurance plans include coverage for free contraceptives. 

 

 Just under Roman Numeral V of the opinion, is a very important passage in which Justice Alito explains the compelling interest test:

            “HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” This requires us to “loo[k] beyond broadly formulated interests” and to “scrutinize the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases.”

Do you see the difference between these two concepts of compelling interest?

 Between “contraceptive access is generally of compelling importance,” on the one hand.

 And “it is compelling important to require religious persons to supply contraceptives,” on the other hand.

 Even if the former is compellingly important, the latter may not be.

However, the Court did not decide the compelling interest issue (it assumed, without deciding, that there was a compelling interest), because in any event it was clear that there were other—less restrictive—means for HHS to ensure that employees receive free contraceptives.

As the Court put it, “the least-restrictive means standard is exceptionally demanding.”

               Gauntlet of Superlatives!

Because there is more than one way to skin a cat, and there is more than one way for HHS to ensure that Hobby Lobby’s employees receive free contraceptives.

Think about this.

HHS wants Hobby Lobby’s employees to get free contraceptives.

One way to do this is to require Hobby Lobby to provide coverage notwithstanding its religious objections.

But that is the most restrictive way, not the least restrictive way.

Are there other ways for the Government to make sure Hobby Lobby employees get their free contraceptives?

What are some of the ways?

   

Well, if it is so darn compelling, I guess the Federal Government could purchase contraceptive coverage for women whose employers opt-out of coverage under RFRA. That would be less restrictive of religious freedom. No?

But there is even an easier way to do this—HHS can require insurance companies to directly provide free contraceptive coverage to employees whose employers opt out under RFRA.

Apparently, this option is cost-free to the insurance companies because the extra expense of providing contraceptive coverage is offset by the cost savings resulting from fewer unplanned pregnancies and thus less coverage of maternity services and child birth.

So there are less restrictive means, and therefore the Government has failed to justify imposing a substantial burden on Hobby Lobby’s religious liberty.

So Hobby Lobby wins the case—it seems to me that this case is easy under RFRA—and no one really loses because Hobby Lobby’s employees will still get free contraceptive coverage under the less restrictive accommodation.