I’m trying desperately to purge my life of legal analysis, but the glob damn Supreme Court just keeps pulling me back in. Jamie wrote a very good summery of what happened, but I didn’t spend three years in law school for nothing! I’d like to try to explain exactly how, in my opinion, this case went off the rails.
I read Burwell v. Hobby Lobby expecting (hoping?) to have my head filled with a lot of hogwash. Don’t get me wrong, this decision is bad. But it’s also not wrong, exactly, at least when you look at it in context of the larger legal landscape dealing with corporations. And that’s the real problem.
The question here has to do with a law called the Religious Freedom Restoration Act (RFRA) and one of its amendments, the Religious Land Use and Institutionalized Persons Act (RLUIPA). These laws grant quite broad protections to religious freedoms. You may be wondering why such acts are needed since we have the First Amendment. Eh, you know. The Supreme Court rules against a couple of Native Americans who smoked a little peyote and suddenly you need a law that grants more protections than the SCOTUS says the Constitution calls for. No big deal. The Constitution is a floor, not a ceiling.
(Note: The distinction between an RFRA case and a free exercise of religion case is important because it implies a different line of precedent cases and a different applied standard. While it looks like Conestoga presented a First Amendment argument, the court did not get to it and decided the case on RFRA grounds.)
I know that legal decisions look intimidating. If you’re not sure where to start it’s just a morass of legalese and perfect Bluebook citations. But there really is a method to the madness. Kind of. Court decisions can seem arbitrary, but, ideally, the justices apply some sort of test. In this case, the test that needs to be applied was specified in the RFRA, and it is three-pronged:
- Does the contraception mandate put a substantial burden on the practice of religion?
- Is the mandate “in the furtherance of a compelling governmental interest?”
- Is the mandate “the least restrictive means of furthering that compelling governmental interest?”
Each of these hurdles must be cleared in turn. If the court answers yes to number one, it can move on to number two, and so on. But before the court can even get to the test, it had to figure out if the law even applied to for-profit corporations. Specifically, the court had to decide if a corporation is a “person” for the purposes of the RFRA, and it’s on this determination that the entire decision hangs.
Once upon a time, the primary tool that people could use to defend their legal right to worship as they choose was the free exercise clause of the First Amendment. By and large, the court used what is known as the Sherbert rule, taken from the 1963 case Sherbert v. Verner. This case enshrined the “substantial burden” and “compelling state interest” test in deciding free exercise cases. It was a test that attempted to balance the two competing interests and it worked reasonably well. Then, in 1990, the court took an unexpected turn with Employment Division v. Smith. This is the peyote case I referred to earlier. The decision in Smith said that, when dealing with criminal law, the government only has to prove an important interest. It may seem like splitting hairs, but in the law “important” is a much lower standard than “compelling.” From then on, outside of employment compensation cases and cases also involving due process, governments only had to prove a compelling interest when the law specifically targeted a religious activity.
No one liked this decision. Right wing religious groups and left wing secular civil rights watchdogs were up in arms. It was felt by many that this did not afford enough protection to the free exercise of religion. Thus the RFRA was born.
I’m telling you this because a.) it’s kind of interesting, but mostly because b.) Justice Alito, who wrote the majority opinion, gets this wrong and IMHO dooms the case.
Sometimes the Supreme Court does something that Congress doesn’t like, so Congress will pass a law to sort of undo the Supreme Courts actions. That’s what happened here. Justice Alito and the majority deny this. The majority is of the opinion that the RFRA grants broader protections than the protections provided pre-Smith. However, as Justice Ginsberg points out in her dissent, the legislative debate on the topic tends to indicate that the intent was to restore the pre-Smith test to religious freedom cases.
In the courtroom, as in life, intent isn’t magic. In addition, it can sometimes be hard to determine. But it can be especially useful when there is ambiguity. However, when writing a decision a judge is not obliged to take that into consideration.
Anyway, this is important because the pre-Smith free exercise cases applied to natural persons. You know, like you and me and not corporations. And the RFRA – of course! – didn’t define “person.” If you look at the act in the context of previous free exercise jurisprudence, it seems clear that person means natural person. But if you look at the act in a bubble, like the majority did, it’s not so clear.
When there is no definition and no context clues, where do you turn? The Dictionary Act. I know. I can’t believe something like that exists either, but here we are. Under the Dictionary Act, a person is defined as natural people, companies, corporations, partnerships, blah blah blah. You get the idea. Since Justice Alito and the majority see no context clues (wrongly) from the RFRA, they define person to be consistent with the Dictionary Act.
It didn’t have to be this way. As I stated earlier, Justice Ginsberg provided plenty of evidence to show that a corporate right to free exercise is not what was contemplated when the RFRA was passed. But once that decision was made, the rest came easy.
This case is not directly in the line of cases that includes Citizens United v. Federal Election Commission, but it’s easy to see how consistent it is. Weirdly, Ted Olson, the lawyer who successfully argued Citizens United, isn’t so sure about the majority opinion in this case. According to The Atlantic, Olson said, “I’m sort of sympathetic to [Justice Ruth Bader Ginsburg’s] dissent in this case.”
O RLY? I fail to see how this case is different from a free speech case. Both involve cases in which corporations – legal fictions – want rights hitherto reserved for natural persons. Corporations can’t speak any more than they can practice a religion.
The dominant narrative – at least in my Facebook feed – is that this is a defeat for women’s rights. I don’t disagree. But the far more concerning aspect of this case is the expansion of corporate rights under the fiction that corporations are people. In an impassioned defense of the entire concept, Justice Alito writes that
When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___ (2014).
This way of looking at corporations is fundamentally flawed. Perhaps not from a legal standpoint, but from a common sense one. The benefits of incorporating a business are financial. Corporations allow for limited liability so if your business runs out of money and can’t pay its debts, the creditors can’t come after you. Things like that. It’s true that a corporation does nothing without its people, but it does not follow that everything the people do must be the actions of the corporation.
Nothing is stopping individuals from freely exercise their religion. As Justice Ginsberg pointed out, unlike religious nonprofits and churches that exist ostensibly to promote their religion in a community, for-profit companies exist to make money. That’s not a bad thing, but it’s not trivial, either. They exist off the work of people who do not necessarily subscribe to a particular religious view. So, in an attempt to preserve the rights of a nebulous legal concept, the Supreme Court has made it more difficult for actual individuals to exercise theirs.
In writing the opinion for the majority, Justice Alito hedges all over the place. He makes it clear that this case only concerns contraception:
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
However, this is what lawyer-types like to call dicta. Legal opinions are long and dense and horrible, but the only thing that is binding in a decision is the holding, and maybe the reasoning behind it. Everything else – like opining on cases not in front of you *ahem* – is dicta. Non-binding fluff. It’s important non-binding fluff, like legislative intent I talked about earlier, but more so. (If you doubt me, just Google footnote four.) But future judges and justices are under no obligation to follow it.
This means that this case could conceivably go beyond the contraceptive mandate to include all manner of care that some religion, for one reason or another, deems immoral or sinful. We’re already seeing it expand past the four forms of contraception objected to in this case. It’s only been a few days since the decision and already Justice Ginsberg’s warning (“The Court, I fear, has ventured into a minefield.”) is already coming true. On Tuesday the Court ordered lower courts to hear cases of companies who don’t want to cover any type of birth control.
The fact remains that companies probably won’t object to covering vaccinations or blood transfusions. But that doesn’t make this decision better. This case is a perfect storm of money, power, and privilege. It’s a case study in what happens when we combine economic power, patriarchal religions, and a misunderstanding of science and medicine. It’s positively breath-taking.
I said at the beginning that I thought this decision was bad, but not wrong. It’s not wrong because it fits the expected M.O. of this court. Expanding the rights of corporations has been this court’s thing. It’s bad because, in doing so, they’ve thrown uterus-havers under the bus and gave themselves room to do it again to others.
EDIT: I just wanted to pop in to add more mines to the minefield that came to my attention after publication. SCOTUS has given the OK for a Christian university to forgo covering birth control, and faith leaders are pushing for exemptions from LGBT hiring protections. Boom.
Featured image credit: Phil Roeder via Flickr