Hobby Lobby, the Employer Mandate, and Religious Exemptions

Last week, the Supreme Court agreed to decide two new religious exemption cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Store v. Sebelius. There are a lot of moving parts in the legal analysis of those cases, so I thought I’d blog several posts about them, one on each of the main issues in the case. The two cases will be consolidated, so I’ll just speak about “Hobby Lobby,” rather than mentioning both case names. I hope the posts will be useful both for people who want to read them all this week, and for future reference when the questions get discussed again in the coming months, as Hobby Lobby is briefed, argued, and decided.

First, a general roadmap. Hobby Lobby and Conestoga Wood are closely held, family-owned corporations. The owners of the corporations believe for religious reasons that it is wrong to use any devices or products that sufficiently risk killing a fertilized embryo, including by preventing implantation of the embryo. (To my knowledge, they are unanimous on this within each family.)

They also believe that it is wrong for them to be complicit in such killing of embryos, including by providing insurance plans for their employees that cover those contraceptives that prevent implantation. They are thus not opposed to all contraception methods — their beliefs are essentially a sort of life-begins-at-conception Protestant, not Catholic — but they are opposed to some.

They thus claim that the federal Religious Freedom Restoration Act of 1993 entitles them to an exemption from the contraceptive insurance requirement imposed by the Affordable Care Act and its implementing regulations. (Hobby Lobby also argues that the Free Exercise Clause also entitles them to such an exemption, but I won’t focus on this argument.) Under that law,

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.

I’d like to discuss this in several sets of posts, with each post focusing on a separate topic:

1. RFRA: What are RFRA claims, and how do they relate to Free Exercise Clause claims? This is background material, which many readers might already know, but which I suspect many others don’t. And there are also some potentially surprising twists here, such as the possibility that — precisely because they are statutory rather than constitutional — RFRA claims may enjoy a friendlier reception among the Justices than Free Exercise Clause claims did from 1963 to 1990, when the Court held that there is a constitutional right to some religious exemptions. I’ll have a few posts on this today.

2. Commerce: There are two separate issues here, which I plan on discussing Tuesday. First, do religious exemption rights extend to commercial behavior? Some have argued that the challengers should lose on the grounds that religious exemption rights don’t apply to commercial endeavors. I think that argument is not consistent with the way religious accommodation claims have generally been treated in American courts, and is also inconsistent with the logic of those rights.

Second, should the challengers’ claims lose because the businesses here are corporations rather than sole proprietorships? News coverage of the case has focused on the question whether corporations can assert RFRA rights. There is also a related question of whether, even if corporations can’t assert such rights, the owners of closely held corporations can assert their own RFRA rights and argue that burdens on the corporations are actually burdens on them as owners. I think that any discussion of corporate rights should recognize that corporations are legal fictions, and that they should have rights only to the extent that such rights protect the rights of actual humans. Nonetheless, I think that corporations and corporate rights are often useful legal fictions, precisely because they help protect actual humans. And in this context of closely held corporations, the business owners should be entitled to be protected either through their own claims, or through their corporations’ claims.

3. Burden: There are two separate questions here, too, which I plan on discussing Wednesday. First, does the requirement that the businesses provide health insurance coverage “substantially burden” the challengers’ rights? Indeed, no-one is being required to actually use the implantation-preventing contraceptives; businesses are only required to provide health insurance that helps their employees use such contraceptives. Nonetheless, the law has long recognized that (a) requiring someone to do something that he sincerely sees as sinful is a “substantial burden” on his religion, and (b) people’s definition of “sinful” often includes sins of complicity and not just sins of direct action. Thus, if the challengers believe that even helping supply instruments of killing — whether they are abortion-preventing devices or, for that matter, tanks or parts that go into making tanks — is a sin, it’s not for courts to second-guess their judgments, or to say “no, you’re not really being required to do anything wrong.

Second, some people have asked whether granting such an exemption to for-profit businesses would violate the Establishment Clause, because it excessively burdens the businesses’ employees. The argument is that it’s unconstitutional to have exemptions that relieve burdens on religious objectors but impose undue burdens on third parties. I think that’s mistaken, though the Supreme Court caselaw on this is rather complex; I’ll talk briefly about the leading cases in this area.

4. Strict scrutiny: Thursday and perhaps even Friday, I hope to blog about what I think should be the central issue in the case — even if the contraceptive mandate substantially burdens the religious observers, is it still justifiable as the least restrictive means of serving compelling government interests? Lots of people have lots of religious beliefs that are substantially burdened by various laws, but for most of them the government interest trumps the religious freedom claim; we see this with tax law, many forms of antidiscrimination law, many drug bans, copyright law, and a wide range of other laws. (You might or might not agree that the government interest should trump in these cases, but courts have found that it does.) That’s why RFRA has a provision for denying exemptions when doing so is the least restrictive means to serve a compelling government interest.

But what counts as a compelling government interest, and what exactly is meant by least restrictive means? I think the law here is extremely unclear, and indeed deliberately so: This aspect of RFRA is essentially a Congressional mandate for courts to use their own moral and empirical judgments in deciding which interests are important enough, and whether exemptions would cause enough practical problems. So it’s hard to tell how the Court will decide this, and I’m not sure myself how it should decide it. Still, I’ll offer some observations on the kinds of arguments that are involved here.

5. Mutual accommodations: Finally, I’ll briefly step away from RFRA as it is, and ask a broader question about the degree to which the legal system might expect accommodation from religious observers, as well as religious observers might expect accommodation from the legal system. I won’t have that much to say on the subject, but I thought I’d offer some tentative observations that are based on the particulars of this case, and that indirectly relate to the “substantial burden” / complicity question I’ll be discussing Wednesday.