Previewing Tomorrow’s Hobby Lobby Decision
The Supreme Court has saved the biggest case of the term for its last day.
Tomorrow the Supreme Court holds the final session of the term that began on the first Monday in October 2013. Since there are only two cases left to be decided, we already know what’s going to happen. One case, Harris v. Quinn, deals with whether certain home health care workers can be required to join a union. It’s the other case, actually two consolidated cases, though, that is the one that everyone will be paying attention, and which will likely burn up a good part of the news cycle for the rest of this week.
In Burwell v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties v. Burwell, 1 the Court is dealing with essentially identical issues, namely the question of whether or not the personal religious beliefs of the owners of a for-profit corporation should be sufficient justification for their refusal to comply with the mandate established under the Affordable Care Act requiring employers to provide coverage for contraceptives in their employer-provided health care plans. Hobby and Contestoga, along with other private employers that have brought similar lawsuits across the country, have claimed that the regulation violates their rights under the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act in that it requires them to pay for certain drugs which they contend are abortifaceants. These claims have met with inconsistent success in the Circuit Courts, although the employers have scored significant victories based primarily on their arguments under the RFRA, as I noted here and here. In November, two of those cases were accepted for appeal by the Supreme Court. In light of how the oral argument went, the expectation from most legal analysts is that tomorrow’s decision will result in a ruling in favor of Hobby Lobby and Conestoga under the Religious Freedom Restoration Act. The unanswered question at this point is how wide or narrow that ruling might be, because the implications of a ruling that provides private entities with a basis to assert the religious preferences of their owners could be quite far reaching.
Claire O’Connor at Forbes outlines some of the implications of such a decision:
[T]here’s far more at stake than the rights of women workers to contraception access, according to experts who’ve studied this case and its precedents.
“If the Supreme Court gives corporations rights under the Religious Freedom Restoration Act, it could be a sea change,” said Marci Hamilton, constitutional law expert and author of newly released book God vs. the Gavel: The Perils of Extreme Religious Liberty.
“Hobby Lobby is discriminating against employees who don’t share their faith. This is another step towards filling the workplace with coreligionists.”
Hers is a concern shared by Rev. Barry Lynn, executive director of Americans United for Separation of Church and State.In a recent teleconference organized by women’s health advocacy nonprofit Catholics for Choice, he described a hypothetical Hobby Lobby victory as “a Pandora’s Box with some very ugly creatures flying out.”
“Scientology-believing employers could insist on non-coverage of its nemesis, psychiatry,” he said. “Jehovah’s Witness-owned corporations could demand exclusion from surgical coverage, under the theory that so many of such procedures require the use of whole blood products forbidden by their faith.”
He added that the Religious Freedom Restoration Act now being debated in the Supreme Court was never intended to be used by large companies like Hobby Lobby, which operates 500 stores. Rather, when it was introduced in the early 1990s, it was intended for niche instances like the rights of Muslim firefighters to wear beards or the use of sacramental wine for religious services in otherwise dry counties.
“If anyone had suggested that a national chain of for-profit craft stores employing over 10,000 people could use this statute to avoid coverage of contraceptives in an insurance plan, it would have been a shot heard round the world,” Lynn said.
Lyle Denniston discusses what is likely to happen next on this issue regardless of which side wins:
It is now nearly a certainty that a second round in this health care dispute, involving non-profits, will reach the Court in the new Term that opens in October. Already, Justice Elena Kagan has given the University of Notre Dame additional time to file an appeal in a case from the U.S. Court of Appeals for the Seventh Circuit. Appeals also were promised in both of the applications filed Friday. The charities in those cases face Tuesday deadlines to take action to obey the mandate.
Under the new federal health care law, profit-making businesses are not entitled to any exemption from the mandate’s requirement that they provide pregnancy preventive services in existing employee health plans. Non-profit groups that are directly affiliated with churches, synagogues, and mosques were granted a religious exemption by the federal government, but not all non-profits with religious objections qualify. That includes many Roman Catholic colleges, hospitals, and other charities.
Last January, in a case involving a Colorado Catholic charity, Little Sisters of the Poor, the Court gave the group temporary relief from the mandate, while a challenge proceeds in an appeal to the U.S. Court of Appeals for the Tenth Circuit. In that order, the Justices crafted an approach entirely outside the terms of the federal law.
The charity, the order said, would not have to perform any duties spelled out under the law, if it simply wrote a letter to government officials saying they were a religious non-profit group with objections based on faith to the mandate. The Little Sisters of the Poor did write such a letter.
In one of the new applications filed on Friday, a non-profit Catholic TV station in Alabama, the Eternal Word Television Network, told the Court that it would like the same kind of order in its case. Its case is pending in the U.S. Court of Appeals for the Eleventh Circuit, but the station’s lawyers said they would be asking the Supreme Court soon to take on the case without waiting for the court of appeals to rule.
That application was filed with Justice Thomas, who handles emergency requests for legal orders in the geographic region that is the Eleventh Circuit.
The second application was filed by the Catholic Diocese of Cheyenne, Wyoming, along with Catholic Charities of Wyoming, St. Joseph’s Children’s Home, St. Anthony Tri-Parish Catholic School, and Wyoming Caholic College. They, too, object to taking any steps to obey the birth-control mandate, and note that they face heavy penalties beginning Tuesday if they are not protected.
That plea was filed with Justice Sotomayor, who handles such requests in the geographic region that is the Tenth Circuit.
Beyond birth control, there are countless other areas where a broadly expansive ruling on the RFRA’s application to this situation would have a big impact. In the employer-employee context, it would theoretically mean that an employer would have the basis to deny coverage for other medical conditions or procedures if they can put forward a credible religious objection to the same. Outside of that relationship, such a ruling would have an obvious impact on the issues that have arisen in recent years surrounding same-sex marriage and the question of whether certain businesses — such as wedding photographers and bakers — should have a right to refuse to provide service to same-sex wedding ceremonies notwithstanding any applicable law banning discrimination based on sexual orientation. Depending on how broadly the Court rules tomorrow, there would seem to me to be a strong argument in favor of such vendors being able to exempt themselves from generally applicable laws such as anti-discrimination laws. Indeed, in anticipation of this decision several states have already made moves to strenthen their own versions of the RFRA to give protection to businesses in these types of situations. In those states, obviously, it wouldn’t matter what the Supreme Court decides.
Everything will have to wait until tomorrow, of course, but as things stand I would expect that we’ll get a decision that grants Hobby Lobby and ConIestoga the exemptions that they are claiming under the law. What happens after that is an entirely different question.
Note: I discussed the legal issues at stake in these cases in greater detail in a post that was written after the appeals were granted by the Supreme Court.
1 The style of both cases changed to reflect the fact that Sylvia Burwell is now the Secretary of the Department of Health and Human Services.
Next: it’s against our religion to pay men and women equal salaries…..
My feeling is the following: if you want to take advantage of religious freedom, then you need to be a partnership. But you don’t get to flip back and forth claiming the advantages of a corporation (limited liability) and a person (religious freedom). Pick one and stick to it.
I stand by my earlier prediction that Hobby Lobby wins by more than 5 votes, but certainly could see a severely divided rationales.
Once again, the whole point of incorporating as a for-profit state-sanctioned corporation is to insulate the individual person from liability — so that, for example, if the corporation does something wrong, the plaintiffs can only go after the corporation’s assets and can’t go after the assets of the individual corporate officers and founders.
Here, though, Hobby Lobby is asking to have it both ways — treat us as individuals when it comes to imposing our personal religious beliefs on our employees, but treat us as a corporation if those same employees sue us.
You want to impose your personal religious beliefs? Fine, then also put your personal assets — your house, your car, your bank accounts and retirement savings — on the line.
It is exhausting having to drag superstitious nincompoops into the 21st century. The right wing is just a dead weight, a lumpy mass of deliberate ignorance, tribalism, primitive greed, weird paranoia and above all, stupidity, that we have to haul around like a car towing an overflowing trailer full of garbage. Where’s the town dump?
It appears not to have occurred to the Hobby Lobbyists that they’re in effect endorsing the rights of religions that they hate.
Lifetime appointments to SCOTUS assures the Bronze Age never ends.
@James in Silverdale, WA: Absolutely right, especially when a majority of them are Catholics and at least 3 of them are extreme right wing Catholics.
grumpy and Rafer have hit on the key to this. The whole point of incorporation (or even an LLC) is to insulate the individual (and her assets and liabilities) from the business (and its assets and liabilities). If you want that separation, you also have to acknowledge that the corporation is no longer YOU. Its speech is not your speech, legally; its ‘beliefs’ (to the extent a corporation can be said to have beliefs) are not your beliefs; its rights are not your rights.
Unfortunately, a court that can believe that giving money is an act of speech protected by the First Amendment is so far down the rabbit hole that they might rule anything at all on this.
While I do think the Roberts court (to use his phrase) often puts a thumb on the scale, I also think they are prudent enough not to be too broad in this ruling.
@michael reynolds:
An incredibly thoughtful response. Well done!
@Gavrilo:
Yeah, sorry, I sometimes get tired of pretending that these people aren’t just morons. The political factions in our country now divide into “Reality-based” and “Cretins who think Jesus wants more guns in heaven.” The fact that we have to go through these asinine battles in order to haul these imbeciles into the 20th century (one more century to go!) is just amazing and depressing.
But I’m sure after another cup of coffee I’ll get into the proper spirit and manage to pretend these people are something other than a backpack full of rocks that we have to hump down the trail.
I’m not real optimistic on the Roberts Court’s potential ruling on this case. At best, we’ll probably end up with some narrowly drawn decision gutting that segment of the law but leaving it open for regulation, blah, blah, blah (that’s the type of thing that Roberts in particular loves writing). At worst, the five conservative judges will basically write a broad religious exemption opening the door for discrimination.
Clearly partnerships are for suckers when you can incorporate and lose nothing and gain immunity. The Roberts court is proving its corporatist bona fides by ensuring that at every turn corporations are superior to actual people.
When their ruling comes down I see a big advantage for all of the new Christian Scientist corporations springing up across the country.
“If you like your religious beliefs, you can keep your religious beliefs.” As long as it’s convenient for those who hate the religious, of course.
Was there this much indignation when Muslim cabbies were refusing to accept passengers with alcohol or guide dogs, because that violated their religious faith?
Or how about this case, when Muslim truck drivers refused to deliver alcohol and were fired for that — but the Obama administration sued to get their jobs back?
@Jenos Idanian #13: Your history suggests that you are not at all concerned with the religious freedom of Muslims. As always, your point would have more heft if it wasn’t so obviously disingenuous.
@James Pearce: I’m sorry if you didn’t pick up on my sarcasm. I was pointing out the difference between cases where employees were asserting their religion as a right to NOT do their jobs — in one case as a public accomodation, in another as a fundamental duty of their employment. And in the second case, the Obama administration sided with the drivers who didn’t want to transport (not actually drink, just transport and not even have to touch) liquor.
Employers own the jobs. They define them, they set the requirements, they decide if they are being performed satisfactorily. The employees can negotiate the details, and always have the option of walking away, but they don’t own the jobs.
The law has its say, of course, but it doesn’t have the right to control the relationship to such a degree. If I have an employee whom I hire with the explicit expectation that they will accept passengers with guide dogs or transport whatever cargo I have contracted to deliver.
In the Hobby Lobby case, the owners are saying that they hold their own personal beliefs and principles in such high regard that they are willing to do things that might not make the most business sense. Their policies might cost them very good employees who choose not to accept the terms of their employment, but is their right. And if enough employees and potential customers find their policies so repugnant, they can set up a competitor and crush Hobby Lobby in the marketplace.
And it does strike me as a bit appalling that, upon achieving their latest victories, the first thing liberals seem to be doing is to find those who opposed them and ramming that victory down their throats. Back during the gay marriage debates, I recall a LOT of marriage proponents saying that OF COURSE they would never force those who opposed it to actually participate in it; OF COURSE they weren’t interested in anything beyond fairness and equality; OF COURSE those who had sincere objections would be respected and tolerated, but the law had to change.
Instead, we’re seeing people who have sincere objections NOT ALLOWED to keep their beliefs, but being sued into providing services to gay weddings. Hell, sometimes I wonder if they are being sought out and demanded to serve these weddings.
Because just winning isn’t enough; the other side must be shown to lose and be crushed.
For the record: I think Hobby Lobby is wrong. But I think they have every right to be wrong. I’m willing to tolerate diversity of opinion, and let things sort themselves out; I don’t need to see the other side destroyed.
@Jenos Idanian #13:
Given your position here I’m curious, what is your stance on religious exemptions for pharmacists who don’t want to dispense birth control.
@Jenos Idanian #13:
Right. So you would maintain that Hobby Lobby could refuse service to black people if they found a religious rationale.
@Jenos Idanian #13:
This video might help you with that problem.
On a more serious note, we need less “ramming that victory down their throats” and less “slap in the face” talk. It’s immature and emotional. Past a certain age, one should be aware that there are some things in this world that are objectionable and yet they must be endured anyway.
That’s why this doesn’t impress me.
The objections are sincere? That’s nice.
It’s still the objector’s problem…not everyone else’s.
@Jenos Idanian #13:
Um, yes? In my household, at least.
I know this comes as a horrible shock to you, but whether or not the Republicans or the Democrats or Obama or the Tea Party supports something does not, in the end, have much influence over whether I do. There are strong correlations, but not causation, and the Obama administration has been (as you note here) on the wrong side in several instances.
If the Court overturns Abood in its ruling on Harris v. Quinn, that would have an enormous impact on the shape of American politics; certainly far more than would a narrow ruling on the Hobby Lobby case, and quite possibly more than even a broad ruling. Much of whatever power the union movement in the US has left resides in the public sector unions, and overturning Abood would devastate public sector unions.
—“Hobby Lobby is discriminating against employees who don’t share their faith. This is another step towards filling the workplace with coreligionists.” Hers is a concern shared by Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. —
I’m not at all sure that a majority on this court knows that Hobby Lobby is not a church.
@Grewgills: Given your position here I’m curious, what is your stance on religious exemptions for pharmacists who don’t want to dispense birth control.
I’d wager you’d find very few pharmacists who wouldn’t believe in birth control. Abortificents, that’s something else.
But if they did, it’s up to their employer.
@michael reynolds: Right. So you would maintain that Hobby Lobby could refuse service to black people if they found a religious rationale.
Absolutely. They have a right to be wrong. And, if as a consequence, non-blacks who didn’t believe in that kind of discriminaion would be perfectly right to say they won’t give Hobby Lobby any business.
I don’t feel this overwhelming urge to have the government enforce my moral and ethical beliefs on everyone else. And I have trouble understanding those who do.
@Jenos Idanian #13:
They think birth control pills are abortifacients, so the religious pharmacists that don’t want to dispense what they consider abortifacients don’t want to dispense birth control. There isn’t a real distinction here.
Wonder if anyone filed an amicus curiae brief on this specific part of their claim discussing whether they’re contending something close to a scientific consensus.
@Grewgills: If a pharmacist believes hormonal birth control is abortifacient then they are per se incompetent and unfit to work as a pharmacist.
@ Xenos
Hey, in tea party country that means make him chief of medicine at the local hospital
Apparently that whole “equal protection under the law” thing is not very important in your scheme of things either.
One solution to this is for businesses to provide employees with a certain amount of money and let them purchase their own insurance. That way they can get the coverage that best suits them. They can also deduct the cost of the premiums from their taxes. Pre-existing conditions are no longer a factor since Obama Care is now available. Most of the companies that I worked for did not provide health insurance.
My understanding is that Hobby Lobby’s insurance did cover birth control. Then when they decided to make a political issue of it they said, “Oops, our bad. We didn’t realize.” If the Court allows this, I suspect the standard for “credible” will end up pretty low.
@Jenos Idanian #13:
Wasn’t this the same idiot who last week was saying “The point I try to keep foremost is that the letter of the law should be subordinate to the principles of the Constitution, and when there’s a conflict, the Constitutional principle should prevail”?
https://www.outsidethebeltway.com/washington-redskins-trademark-canceled/#comment-1940825
So no, under the Constitution they don’t have “a right to be wrong.” The 1964 Civil Rights Act, incorporating the 14th Amendment’s equal protection and due process principles, provides that all people are guaranteed the right to “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin.”
@Jenos Idanian #13:
They don’t, however, hold their personal beliefs and principles in such high regard that they refuse to manufacture in and import goods from China:
The most glaring inconsistency between Hobby Lobby’s ethical proclamations and its business decisions concerns the matter of religious liberty. The craft store chain is hailed by conservatives as standing up to Uncle Sam and fighting for religious freedom. Yet Hobby Lobby imports billions of dollars worth of bric-a-brac from a nation that denies 1.35 billion citizens freedom of worship…
If Hobby Lobby was concerned with religious freedoms — not just those of conservative American Christians — it would quit doing business in China.Every time you buy a decorative platter from Hobby Lobby with a Bible verse stamped across it, you have funded the company’s fight against the HHS contraception mandate. But you’re also sending a chunk of change to a country that forces people to abort their children, flouts basic standards of workplace dignity, and denies more than a billion people the right to worship.
http://theweek.com/article/index/263225/stop-calling-hobby-lobby-a-christian-business
@Jenos Idanian #13:
Employees, however, own their compensation for labor performed — and health insurance is as much compensation as cash wages.
Once the employer pays the worker their wages, those wages belong to the employee, to do with as they wish. Just as the employer can’t tell a worker what to do with the $100 in her checking account that comes from her paycheck, so it can’t tell her what to do with the medical care that comes with her health insurance coverage.
@Jenos Idanian #13:
If they’re willing to do that, then their solution is simple: unincorporate. Transform Hobby Lobby from a corporation (which protects the owners and founders from personal liability from corporate actions) into a partnership, and thereby place the personal assets of the founders and owners at risk.
As has been stated above, the point of a corporation is that the corporation is an independent legal entity, it is not “you”, the CEO or chairman or VP, and as such it has no personal beliefs. If you want to express your personal beliefs in the business sphere, then you always have available to you the option of doing business as a partnership, which provides for more personal expression (with the downside that it also allows for more personal liability).
Right. So people that indulge in vainglory should have their own set of special rules.
@al-Ameda:
Maybe that’s the next step – that way they can still be a corporate-person, and also avoid taxation.
As has been oft repeated, I’m cool with corporations having rights, free speech and religious preferences, just as soon as they start coming home from war in body bags.
@grumpy realist:
Well, now I understand the rationale of the obama admin.
@Rafer Janders:
So why should people with religious viewpoints be put at a disadvantage compared to people without that viewpoint? Sounds like that would be a violation of the 1st amendment. Establishing official atheism is just as bad as establishing an official religion. Just because you don’t value a right does not mean that other people are not entitled to it.
@jim m:
Corporations cannot have all of the responsibilities of people, are created to avoid some of the responsibilities we have as people, and so should not be considered people no matter how many people own them. Pretending corporations are people because of a legal fiction used to make business transactions easier is a perversion.