How We Got Here–And Where We’re Headed
Yesterday, on its final day of the 2013-14 term, the Supreme Court of the United States handed down a decision for Hobby Lobby and its owners, the Green Family, forbidding the government from requiring them to provide insurance coverage for the provision of abortion-inducing drugs or devices for their employees pursuant to regulations enacted by the Department of Health and Human Services in implementing the Patient Protection and Affordable Care Act, aka “Obamacare.”
The HHS regulations mandated coverage for some twenty types of contraceptives. Hobby Lobby and the Greens did not object to providing coverage for sixteen of these. They objected, on grounds of conscience, to providing the four that can or might cause the death of a developing child in the early embryonic stage, if conception has occurred. As devout evangelical Christians, they argued that the imposition of a requirement that they provide coverage for abortion-inducing drugs or devices violates their rights under the Religious Freedom Restoration Act.
This piece of federal legislation, signed into law by President Bill Clinton in 1993 after being passed by overwhelming bipartisan majorities in both houses of Congress, provides for conduct exemptions to laws of general applicability where such laws substantially burden religious practice or belief, unless the government can meet the high burden of demonstrating that a legal imposition is supported by a compelling governmental interest—the highest standard known to our law—and represents the least restrictive means of protecting or advancing that interest.
Hobby Lobby and the Greens, represented by attorneys from the Becket Fund for Religious Liberty (full disclosure: I am a member of its board of directors and executive committee), argued that the abortifacient mandates (1) substantially burden the practice of their faith; (2) are not supported by a compelling interest; and (3) do not represent the least restrictive means of pursuing the government’s objective of supplying these products to women. The Obama administration contested these claims and denied that RFRA protections apply at all to for-profit businesses (as opposed to religious organizations).
The decision’s most important feature is its rejection of that contention. The five justices in the majority—Alito, Roberts, Scalia, Thomas, and Kennedy—explicitly reject it, thus establishing as a matter of law the proposition that RFRA protections can apply to for-profit businesses, and do apply to closely held corporations. It leaves open the question, which is probably purely theoretical, whether RFRA protections apply to large, publicly traded companies. Two of the four dissenting justices—Breyer and Kagan—decline to reach or opine on the question of whether RFRA protects for-profit businesses—pointedly refusing to join this aspect of the dissent filed by Justices Ginsburg and Sotomayor who, alone, contend that for-profit businesses do not enjoy RFRA protections.
Friends of First Things will not be able to resist the feeling that the late Richard John Neuhaus, the founder of this journal and the leader of the opposition to the idea that religion is a purely “private” activity that has no legitimate role in the public square, is smiling down from heaven. Yesterday was Fr. Neuhaus’s big day. The Court ruled that the Greens did not forfeit their rights to run their business in line with their conscientious religious beliefs merely by choosing the corporate form.
Just as the for-profit company known as the New York Times enjoys the right to freedom of the press under the First Amendment, so Hobby Lobby enjoys the right to religious freedom protected by RFRA. Protection for religious liberty doesn’t stop where commerce begins. As Neuhaus tirelessly insisted, our religious lives cannot be restricted to what we do in our homes before meals or on our knees at bedtime, or to our prayers and liturgies in churches, synagogues, mosques, and temples. Religious faith motivates, or can motivate, our convictions and actions in the exercise of our rights and responsibilities as citizens, in our philanthropic and charitable activities, and in the conduct of our businesses and professions.
Once the Court establishes the principle that RFRA covers people of faith operating as corporations, just as it covers people doing business as sole proprietors—and protects them in their business lives just as it does in other spheres—the Court has no difficulty perceiving that the abortifacient mandates substantially burden the Greens’ freedom of religion and that, however one characterizes the governmental interest the mandates are meant to be advancing, there is no way plausibly to claim that they represent the least restrictive means of advancing that interest. Obviously, the government could, for example, provide women with abortion drugs or devices itself. And there may be other ways of providing those products without conscripting Hobby Lobby and the Greens into the process, thus forcing them to violate their consciences, pay crushing fines, or push their employees onto the state healthcare exchanges.
But what about the question of how to characterize the governmental interest? Being a good judicial craftsman, Justice Alito adheres firmly to the canon of legal interpretation that counsels against reaching an issue that need not be resolved in order to dispose of the case at hand. So, having determined that the abortifacient mandates flunk the “least restrictive means” test, he declined to address the question of whether providing abortifacients as part of employer-provided insurance plans constitutes a compelling interest.
It isn’t hard to see, however, that it couldn’t possibly constitute such an interest. Countless employers of fewer than fifty fulltime workers are relieved of the requirement to provide insurance to their employees under the ACA altogether, and many millions of other employees are in “grandfathered” plans unaffected by this HHS mandate. They are not required to provide coverage for contraceptives or abortifacients. For the whole of history, before Obamacare was signed into law only four years ago, no company in the United States was required to provide coverage for these products. So the Obama administration is hardly in a position to say that the provision of abortion drugs or devices, or coverage including them, constitutes a compelling governmental interest. Indeed, one wonders how the government’s attorneys could make that claim with a straight face.
What does today’s ruling portend for the other cases coming down the line concerning the mandates, including those for religious non-profit entities to whom the Obama administration has offered an “accommodation” that they, rightly in my view, regard as phony? Some language in Justice Alito’s opinion, and especially some language in Justice Anthony Kennedy’s short concurring opinion, is causing a bit of anxiety for religious freedom advocates. The Becket Fund explains the “accommodation” and what is fallacious about it:
Under this, an objecting organization will notify its insurer or plan administrator, which will make payments to employees for the mandated contraceptive services. The rule insists these payments are not “benefits” and are separate from the organization’s health plan. Nonetheless, the accommodation means that employees are guaranteed payments for objectionable services, specifically because they are covered under the organization’s plan. Furthermore, the accommodation requires a self-insured organization to “designate” its plan administrator as an agent who will make or arrange for payments for the mandated services. This “accommodation” fails to solve the moral problem created by the mandate for many religious organizations.
My own judgment is that Alito’s words needn’t and shouldn’t be interpreted as suggesting that he thinks the “accommodation” satisfies RFRA concerns about the religious freedom of Catholic and Evangelical colleges and other institutions that have filed lawsuits to prevent imposition on them of the contraception and/or abortifacient mandates. As I said, Alito is a good judicial craftsman. He doesn’t address issues that needn’t be resolved in order to dispose of the case at hand. It is a mistake to read him as signaling a favorable attitude towards the “accommodation.”
Kennedy, not uncharacteristically, is harder to read. I can’t say with confidence that he is not signaling a friendly attitude towards the “accommodation.” At the same time, I cannot say that he seems to have settled his mind on the question. When one of the cases presenting the issue makes it to the Supreme Court, it will be incumbent on the lawyers challenging the imposition of the mandates to do a good job of explaining how, despite the “accommodation,” they implicate the religious employer in the provision of contraceptives and abortifacients in violation of their conscientious opposition to providing these products.
In the mean time, the cases filed by non-profit institutions like Colorado Christian College and the University of Notre Dame, and by the Catholic television network EWTN and the redoubtable Little Sisters of the Poor, will work their way through the system—mostly winning in the lower federal courts. Notre Dame Law School professor Gerard Bradley, one of our nation’s most astute commentators on religious liberty issues, has noted that these cases are of two kinds: (1) those involving claimants who self-insure; and (2) those involving claimants who purchase insurance from companies. Professor Bradley believes that today’s decision should inspire a great deal of confidence for claimants in the first category. The situation for those in the second, considered in light of what Justice Kennedy says in his concurring opinion, is more uncertain. What is certain is that Kennedy’s vote will decide the cases that consider the “accommodation.” Lawyers on the competing sides can each count on four votes being with them and four against. So lawyers on both sides will be directing their arguments to Kennedy. As is often the case, he is The Decider.
All the while, politics will happen. Hillary Clinton, Sandra Fluke, Nancy Pelosi, and others are already warning that the Supreme Court has joined the alleged “war on women.” Left-wing pressure groups will whip their base into a frenzy for electoral and fund-raising reasons. Brandishing Justice Ginsburg’s overwrought dissenting opinion, they will compare the justices in the Hobby Lobby majority to leaders of the Taliban. Democrats in Congress, egged on by the Daily Kos, Planned Parenthood, NARAL and the rest, will propose reversing the Hobby Lobby decision by amending RFRA or repealing it altogether.
Friends of religious freedom must respond swiftly and strongly to the claims and political machinations of their adversaries. We must wield the sword of truth against the falsehoods and gross exaggerations that will become the currency of the other side’s attacks. Without resorting to their tactics, we must match their intensity and determination. Key elements of our religious freedom hang in the balance.