A Superfluous (and Late!) Hobby Lobby Post

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:

  1. Does the contraception mandate put a substantial burden on the practice of religion?
  2. Is the mandate “in the furtherance of a compelling governmental interest?”
  3. 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


Mindy is an attorney and Managing Editor of Teen Skepchick. She hates the law and loves stars. You can follow her on Twitter and on Google+.

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  1. I didn’t find this superfluous at all. I haven’t read another article that presented the legal reasoning so clearly. You did those of us without a formal legal education a huge service, so thank you.

  2. An excellent dissertation that goes right to the heart of the problem.
    I only wish we could somehow build momentum for a constitutional amendment detailing once-and-for-all the limits of corporate personhood. I’m aware that some level of personhood is required for the purposes of legal representation, but this court has gone flying off the deep end on a flimsy thread of legal justification, all to suit a particularly mad agenda of extreme conservatism.
    It’s clear that this train isn’t stopping until a conservative justice croaks, or until we nail real protections into the founding document of this country.

  3. Really great job, Mindy. Extremely well translated. If I had a criticism, it would only be that it brought back terrible memories of Con Law discussions during law school. :)

  4. One does not ‘smoke’ peyote.

    Your knowledge of hallucinogenic substances aside, great job. What’s interesting is, in some ruling, Scalia said RFRA doesn’t apply to states, even though it was written specifically because of the Smith case. So it ended up protecting the rights of fictional people who don’t need their rights protected in this case, but not the real people it was written for.

    Is it weird that I’d actually welcome Barbara Loe Fischer attempting to exploit this weak point, just to show the Court what they hath wrought? Come on, anti-vaxxers, be the good guys, err, morally ambiguous guys, for once in your parasitic existence.

      1. It’s a cactus. The buds are steeped in water. Some people think it’s a mushroom because peyote buttons look like mushrooms. (And because of the infamy of Amanita muscaria.) Ironically, the only Indians north of the Rio Grande to use it…are all part of one particular Christian sect. Which explains why they’re reading the Apocalypse of John the Divine.

  5. “Weirdly, Ted Olson, the lawyer who successfully argued Citizens United, isn’t so sure about the majority opinion in this case.”
    I’m actually not too surprised. Ted Olson has invested a lot of time in the Republican political machine, but he’s not entirely socially conservative. I suspect that he is much more comfortable with companies’ “right” to expend money to promote self-serving political views than their “right” to intervene in their employees’ personal affairs. (Also, I sincerely wonder if Olson himself could have anticipated how broadly SCOTUS would rule in Citizens United; the conservative majority really went beyond the question they were presented with in that case.)

    1. I guess I was surprised because I don’t see a difference between them, fundamentally. Both deal with rights exclusively reserved for natural persons…up until they weren’t anymore. Hobby Lobby seems intellectually consistent with Citizens United, so I assumed that Olson would have been on board. But you’re right; when it comes to this type of meddling in personal affairs, he does seem to lean more left, so maybe I shouldn’t have been surprised.

  6. “[Corporations] 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.”

    The concept of “corporation” as “individual” is hardly nebulous. How many of us boycotted Chick-fil-A over its owners’ views on gay marriage? Why should we as individuals have the right to promote our values with our wallets, but not the individuals who own Hobby Lobby? As I said in a previous comment on this subject, I see this ruling as an affirmation that one person’s “freedom” cannot take precedent over another’s. The court was careful to note there are many less freedom-infringing ways oral contraceptives can be supplied. (My personal preference is that they be made available over-the-counter.) I can’t say I’m ever too terribly upset when the court rules in favor of NOT infringing someone’s freedom, even (especially?) if I don’t agree with the values protected.

    The court also stated this decision applies only to “closely held” corporations, which the IRS defines as having 50% or more of it’s stock owned by five or fewer individuals. Sure, Hobby Lobby is a “corporation,” but the court made it clear we’re really talking the family who owns it. Who were we sending a message to when we boycotted Chick-fil-A?

    Further, there is more to incorporation than simply “making money.” Corporations exist for all manner of purpose in this country, many of which are not-for-profit. (Incidentally, the court already ruled the mandates don’t apply to not-for-profit corporations; why should making a profit all of a sudden mean your rights are any less important?) Besides, the American regulatory, legal and tax systems incentivize incorporation such that it is all but impossible to compete on a national level, as does Hobby Lobby, unless you do. And don’t forget it’s not just the owners who benefit from incorporation; it’s also good for tax collectors and people who like businesses to be well regulated. When you incorporate you (usually) incur a higher tax burden than a partnership/proprietorship, and you open yourself up to all manner of increased bureaucratic scrutiny.

    So how is it reasonable that an individual who chooses to incorporate in today’s business environment should also be required to give up their personal convictions–no matter how twisted they are? What if the government decided lunch should be an employment benefit? Should a business owner aligned with the animal rights movement be required to give their employees pepperoni pizza and grilled ham & cheese sandwiches for lunch?

    Getting back to the point you made in your quote above: How does the court’s recognition of the rights and freedoms of the individual or small group of individuals who own closely-held corporations make it more difficult for others to exercise theirs? This ruling does not prohibit anyone from seeking employment with a different corporation (people) whose values more closely align with their own, or better yet, starting their own corporation and infusing it with the values they deem important. Nor does this ruling mandate anyone purchase goods and services from corporations (people) whose values they disagree with (see Chick-fil-A above).

    In short, I don’t agree this ruling takes away anyone’s rights. If it does anything, it highlights the absurdity of the health care system we’ve created for ourselves in America. Health care decisions should be between patient and doctor, not between patient, doctor, insurance provider and boss. The solution to this problem won’t be found in further government mandates and regulation of employers, the solution is to divorce individual health care choices from employment (and government too, but that’s a different discussion).

    1. When an individual boycotts a business they are making a decision for themselves and no one else, when an ownervof a corporation makes that decision they make it on behalf of all their employees regardless of those employees rights.
      Your analogy has a fatal flaw, you do not get to decide things for other people except in limited circumstances. The SCOTUS has allowed the corporation owner’s right to hold a belief to trump the employees’ rights to determination. A single individual’s personal belief being given providence over several other individual beliefs is a loss of rights even if you personally have no problem with it.

      1. So, in a nutshell, you’re saying the rights of the majority outweigh the rights of the minority. This is exactly the attitude that the Bill of Rights is meant to protect individuals from. The imposition of beliefs held by a group of people on a smaller group (or individual) simply because they are the majority has been the basis of many bloody disputes throughout history, and is generally considered evil by most people I know.

        Besides, the owners of Hobby Lobby aren’t making any decisions for their employees, they are making decisions for themselves. While it’s true those decisions affect their employees, so do ALL the decisions they make regarding their business. All of us get to decide things that affect others; and we do it all the time. I’m free to decide whether I’ll remain employed. That decision affects my wife, my family and my community, which loses the tax dollars I’ll no longer pay.

        The protection of individual rights and beliefs is the bedrock principle of American citizenship.

        1. Wrong again boom boom, they are supposed to determine to constitutionality on laws passed by congress. They are not charged with protecting the individual unless the individual is being unfairly targeted by a law, they are also not charge with protecting the rights of the powerful over the individual sighted. But you wouldn’t know it by the way certain activist judges have been acting. The SCOTUS has allowed the incorrect ideas (abortafactants my ass) of the powerful to stand in the way of the health care that its employees have paid for because of ideology.
          It is a terrible decision,period.

    2. “So how is it reasonable that an individual who chooses to incorporate in today’s business environment should also be required to give up their personal convictions–no matter how twisted they are?”

      Because the whole point of the corporation is to be a shield between the individual and their business actions. The corporation shields the corporate partners from having to face individual consequences for their actions within the corporation. You can’t hold yourself apart from the consequences of your decisions by claiming the corporation and yourself are separate entities one minute, then turn around and claim you can impose your individual beliefs through the corporation because you and the corporation are the same entity.

  7. And of course, dear “Boomer” is missing the point that these supposed “alternatives” are a) either non-existent, b) won’t exist without government stepping it, or b) where they do exist, are provided by either the government, or some other source, which the same right wing twits that think this ruling was a good idea have been fighting, tooth and nail, to undermine, defund, render illegal, put out of business, or otherwise destroy, the whole time this case was being run through the system.

    Your rights end at my nose, Boomer. That means that, where it effects **business decisions** a corporation has a true interest in deciding if it wants to keep me as an employee (and there are times where even that gets to be total BS, like people being fired for personal hobbies that some clown in the company doesn’t like), but not if I buy the wrong soap, or rent the wrong car, or get the wrong sort of surgery, or if a woman, I decided to use bloody birth control. Companies shouldn’t have any right to dictate choices made outside their own bloody doors, and the only recourse they should have, when/if they have such a right is to find legal grounds to terminate the employee, not deny them things, just because they don’t like what they are doing on the weekends, or which sorts of health care they choose,especially if what they are doing is the equivalent, in this case, of showing up at the employees weekend BBQ, and steeling their steaks, because the “company” doesn’t believe in meat eating, or some stupid BS like that.

    No, lets change that a bit. Its like having the corporation decide that it doesn’t want to *pay* employees, only to them have them turn around and buy meat, so they push for the government to create a purchase tracking system, so that if their employees merely *attempt to* use the money payed to them by the company to buy such a thing, it can be denied. Now, you *could* use money from some other source, but since the company is now paying you with a corporate debit card sort of thing, not allowing you to deposit the money, to use as you want, you can’t use **their** money to buy such things. That is what is going on here. And, its been illegal since the government decided that working for a company, while in company housing, and being told you **had to** buy your good from the company, and never any place else, was also illegal for companies to pull on people. How is this BS any different? Because its the company insurance that is denying it, and they haven’t yet (well, except for McDonalds, and a few others, tried to pull the, “We are going to pay you with company script (i.e., a debit, or worse, credit card)? Because they haven’t had the legal means, until now, to go, “OK, now that we can legally object to how you spend the funds/insurance/etc. we provide you as an employee, we also get to dictate what you can buy with them!”

    Do you really think this isn’t one of the steps, down the road, for this crap?

  8. Hobby Lobby isn’t telling it’s employees whether or not they may use contraceptives (actually, it’s abortifacients), it’s simply saying it doesn’t want to supply the four types that they find objectionable based on their religious beliefs; it has no problem–and even makes available for their employees who want them–16 other types of contraceptives. Here’s what Hobby Lobby says, directly from FAQ section about the court case on their website:

    Is Hobby Lobby preventing its employees from buying contraceptives under its plan?

    Not at all. The Greens and their family businesses respect the individual liberties of all their employees. The Greens and their family businesses have no objection to the other 16 FDA-approved contraceptives required by the law that do not interfere with the implantation of a fertilized egg. They provide coverage for such contraceptives under their health care plan. Additionally, the four objectionable drugs and devices are widely available and affordable, and employees are free to obtain them.

    But isn’t Hobby Lobby depriving its women employees of health care?

    Just the opposite: the Greens and their family businesses, including Hobby Lobby Stores Inc., offer their employees – nearly 70 percent of whom are women – a robust benefit plan that includes coverage for preventive care and almost all of the contraceptives required under the Affordable Care Act. That plan includes an on-site clinic with no co-pay at Hobby Lobby headquarters, and all full-time employees are eligible to enroll in a generous benefit plan: including medical, dental, prescription drugs, along with long-term disability and life insurance, and a 401(k) plan with a generous company match.

    I’ve yet to hear from an actual Hobby Lobby employee (even a former employee) complain about the health benefits they receive(d). If someone has links please share.

    1. Okay, I just have to say that using Hobby Lobby’s own words, presumably crafted by their PR and legal team to protect their image, is kind of an absurd action in this context. They also have incorrect implications; calling an IUD “affordable” for someone working on a Hobby Lobby cashier’s salary is ridiculous.

      Hobby Lobby itself, and the people they employ, are such a small part of the issue at this point. I’m actually impressed and relieved that HL seems to have no problem with the government stepping in to ensure these women have affordable access to the contraceptive that works best for them. The decision is much more wide-reaching, though, and has already started to show its breadth due to the fact that other corporations are objecting to paying for *any* birth control, and Wheaton College in Illinois is refusing to even fill out the paperwork documenting their objections because they *don’t* want to allow the government to step in and help their faculty and students with access to contraceptives they find religiously objectionable.

      1. Not to mention the real joke in Boomer’s assertion, that the people whining about coverage of contraceptives can ***even tell the F-ing difference between contraceptives and ‘abortifacients’***, comprehend that there is one, or won’t/haven’t, assuming they do know the difference, lied their asses off about what something covers, and what it does before.

    2. “actually, it’s abortifacients” Are you just correcting mrmisconception’s spelling, or are you actually saying birth control is the same thing as abortifacients? If the former, that’s pedantic. If the latter, you’ve lost any credibility you may have had in this argument.

  9. The fact that Alito’s decision limits it to only contraception just screams “special pleading” to me.
    And the fact the 5 justices voting for this decision are all men and all Catholics has me rolling my eyes.

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