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Justice Alito Rides Hobby Lobby into Summer Break

July 1, 2014
by Ben Christopher

It’s always nice to go out with a barnburner.

Wrapping up a session already thick with contentious and consequential rulings from campaign finance to affirmative action, the Supreme Court ended its 2013–14 term with a bang yesterday, dropping a decision that simultaneously touches upon the issues of reproductive rights, Obamacare, freedom of religion, and the limits of corporate personhood. Predictably then, the response to Burwell v. Hobby Lobby decision has been explosive.

Many progressives have lambasted the 5–4 decision, which exempted the Oklahoma-based arts and crafts retail chain from including coverage for certain contraceptives in the federally mandated health insurance it provides to its employees. Opponents say it illogically and improperly bestows on corporations religious rights typically reserved to flesh-and-blood mortals, all at the expense of real-life, living, breathing women.

“SCOTUS gives women the middle finger” reads a headline at Salon this morning. In the story about the Hobby Lobby ruling—and last week’s decision on buffer zones for anti-abortion protesters—Katie McDonough writes: “A deeply conservative and majority male court that has lifetime appointments just affirmed once again that corporations are people but women are not.”

But while the political implications of the ruling are clear, as the court’s conservative bloc plus Kennedy sides with the religious retailer and the court’s liberal wing—including, incidentally, all three female justices—joins the dissent, the legal consequences are anything but. Some legal scholars predict that this decision has blown open the doors to more expansive claims of corporate religiosity, however others are adopting a “wait-and-see” attitude.

Melissa Murray, a UC Berkeley Law professor who specializes in family law, is very much in the former camp.

“The court says that this is a very limited decision, so that is a thing to be glad about,” she says. “But I do think it will have some very important repercussions, not just in regard to access to contraception, but in many other aspects of private life.”

The ruling is “limited” in the sense that it focuses on how a single federal law should be interpreted, rather than, say, the first amendment of the constitution, Murray explains. The law in question, the Religious Freedom Restoration Act, was passed in 1993 in response to a previous Supreme Court ruling, which held that unemployed Native Americans who took peyote for religious purposes could be denied unemployment benefits as a legal consequence of their drug usage.

The resulting outcry from an unlikely coalition of Christian conservatives and civil libertarians forced the bipartisan passage of RFRA, which effectively raised the bar on any federal law that comes into conflict with religious expression or belief. Going forward, the law stated, the government has to prove first that it has a very good reason for imposing any law that meddles with religious expression, and second, that such meddling is being carried out in the least restrictive means possible. In other words, if the government is going to interfere in the way that people practice their faith, it had better tread lightly.

Fast-forward two decades and Hobby Lobby has now evoked the same law to contest the contraceptive mandate within the Affordable Care Act. Specifically, the company, channeling the convictions of its owners, evangelical billionaire David Green and his family, objected to the requirement that companies of a certain size have to provide insurance that covers two types of intrauterine devices (IUDs) and two emergency contraception pills (ECPs), such as the “morning-after pill.”

Hobby Lobby owns 572 stores across the country and employees some 13,000 workers.

Unlike other forms of contraception, such as birth control pills, condoms, and diaphragms, which prevent an egg from being fertilized in the first place, IUDs and ECPs prevent an already fertilized egg from attaching to the uterine wall. The distinction between gamete and zygote apparently making all the difference, Hobby Lobby argued that such devices are in fact “abortifacients” and that any law compelling it to fund their purchase and use is an example of government overreach and violates their freedom of religious expression.

The court, in a majority opinion written by Justice Samuel Alito, agreed. Specifically, it ruled that if the government really wanted to ensure that all women have access to these products it could do so, but in a way that did not impinge on the religious expression of others. In what is certainly a first for the deeply conservative Alito, the Justice offered a hypothetical argument in support of universal contraceptive coverage.

“The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty,” he wrote.

Even so, don’t hold your breath for Congress to take up the Tax-Payer-Funded Free Morning-After Pill Act anytime soon.

Despite the narrow scope of the ruling, Murray says she’s concerned about the logic of Alito’s decision.

“The idea that an employer can say, ‘my religious beliefs prevent me from covering contraception for women’ also means that an employer could say, ‘my religious beliefs hold that marriage is solely a union between man and women, and therefore, I won’t extend health care benefits to your same-sex spouse or domestic partner,’” she says.

Perhaps anticipating this response, Alito stresses in his opinion that the decision 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,” he wrote. “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.”

In oth­er words, cor­por­a­tions are people, my friend—“and that’s why Hobby Lobby should lose.”

In other words, the government may have a “compelling” interest in covering vaccines or other important medical products and procedures, an interest that supersedes the rights of employers to refuse coverage for religious reasons. But according to the court, that interest isn’t quite as compelling when it comes to certain kinds of birth control. And if it is, there are better ways than an insurance mandate on religious employers to achieve that goal.

Despite Alito’s assurances in the decision, Murray isn’t convinced.

“Justice Alito says that it’s only limited to contraception, but the reasoning of the decision could obviously have implications beyond that,” she says. “Now, a privately held corporation can claim under RFRA that it is a person that is subject to its protections. Why wouldn’t this same logic allow RFRA to insulate public corporations as well?”

The fact that Hobby Lobby Stores, Inc., and not David Green, brought this case is not incidental. The whole notion of corporate personhood—much debated after the Supreme Court’s 2011 Citizens United decision and much scoffed at after Mitt Romney famously said “corporations are people, my friend” during a presidential campaign stop in Iowa—is once again at the fore of the political conversation with yesterday morning’s decision.

Of course, to Mr. Romney’s credit, in a certain highly legalistic respect, corporations have always been considered “people.” Indeed, the right to own property and to independently represent itself in court, as we mere mortals do, is the entire purpose of the modern corporation. As a legal “person” the corporation can sue, be sued, and go bankrupt without dragging its owners into the fray.

But extending the right of religious freedom to a legal profit-making entity does, on its face, seem a bit odd. How exactly does a corporation express its faith? How does it choose a religion? And most importantly, says UCLA law professor, Adam Winkler, who wrote about the Hobby Lobby case for Slate last March, if a corporation is a person legally distinct from its owners when it comes to matters of the courtroom, why then would you assume that it attends the same church? “The owners claim that their personal religious beliefs would be offended if they have to provide certain forms of birth control coverage to employees. Yet Hobby Lobby’s owners aren’t required by the law to do anything. The legal duty falls on Hobby Lobby, the company, not its owners,” writes Winkler. “Hobby Lobby’s owners want to have their corporate cake and eat it, too.”

“If in­stead you had a com­pany where 51 per­cent is owned by one fam­ily and the re­main­ing 49 per­cent is owned by people who say, ‘to hell with this, we’re will­ing to pay for the lousy in­sur­ance,’ then you’d get a totally dif­fer­ent case. I think it’s pre­ma­ture to say the sky is fall­ing.”

In other words, corporations are people, my friend—“and that’s why Hobby Lobby should lose.”

But according to Justice Alito, the family-owned Hobby Lobby is a particular kind of corporation, which makes the attribution of religious belief less illogical.

After all, churches and certain nonprofits can already claim an exemption, he writes in his opinion. Ascribing religious views to a large organization is, in and of itself, neither difficult nor illogical. And though it is “unlikely” that large publicly traded companies like General Electric could assert religious rights, this ruling, he writes, applies only to “closely held corporations, each owned and controlled by members of a single family.”

Still, “closely held” offers a lot of wiggle room, says Murray.

“The idea of thinking of Hobby Lobby as some kind of mom and pop shop is ludicrous. Yes, it’s ‘closely held.’ But it’s a major, for-profit corporation. It would be like saying Berkshire Hathaway is a small, family-held business,” she says. “The court does emphasize that this ruling is intended just to encompass private, family-held businesses. I don’t think there’s a principled way to make this distinction.”

“This is much further down the road,” she adds. “But I don’t know how you contain this.”

Jesse Choper, a Berkeley Law professor and author of the book Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses, agrees that “closely held” is a “term of art.”

But he is less concerned about how yesterday’s decision will be expanded upon in the future.

“’Closely-held is defined in dozens of different ways by different states when regulating corporations, but this decision chose one of the narrowest definitions of all,” he says. “These religious freedom protections were extended to a for-profit corporation for the first time, but so far, it’s in a very limited form. There aren’t very many big corporations that employ lots and lots of people that are exclusively owned by one group of people.”

“For example, if instead you had a company where 51 percent is owned by one family and the remaining 49 percent is owned by people who say, ‘to hell with this, we’re willing to pay for the lousy insurance,’ then you’d get a totally different case,” he says. “I think it’s premature to say the sky is falling.”

“Hey, it might!” he adds. “But only time will tell.” 

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