Archive | Hobby Lobby

A Response on the Hobby Lobby Posts, from Matt Bowman at the Alliance Defending Freedom

I thought I’d pass this along, since many of our readers are interested in the case. Naturally, I’m also open to posting something from one of the lawyers or academics on the opposite side of the issue.

First, I want to thank Prof. Volokh for his fine series of posts on the cases involving the mandate of early abortion causing birth control in health plans. As one of the attorneys for multiple clients challenging the mandate, including the Hahn family of Conestoga Wood Specialties whose case is being reviewed at the U.S. Supreme Court, I was pleased to read Prof. Volokh’s clear and wide-ranging analysis. While I largely agree with his conclusions, there were bound to be some differences in such a broad discussion. Prof. Volokh has graciously allowed me the opportunity to respond to two of those points of departure.

In his post, RFRA Strict Scrutiny: The Interest in Protecting Health, Prof. Volokh wrote:

It seems to me that a compelling interest in protecting health is indeed implicated here. Preventing unwanted pregnancy helps prevent a wide variety of possible health problems. Protecting physical health seems likely to be seen as a compelling interest. And making these contraceptives available to people with no out-of-pocket cost to them will make it more likely that they will be used, and the health problems will be avoided. Moreover, particular contraceptives are particularly effective in dealing with particular conditions. Plan B is particularly effective at preventing pregnancy post-intercourse. IUDs are particularly effective for women who have bad reactions to oral contraceptives. So I expect that the Court will indeed say that the government’s attempt to make these particular contraceptives available to employees of Hobby Lobby and similar employers furthers a compelling interest in protecting health.

I think this assumes a compelling interest far

[...]

Continue Reading 0

6. Beyond RFRA: What Should We Think of Mutual Duties of Accommodation?

Whew. That was a lot of writing on Hobby Lobby last week, and a lot of reading. I hope it was helpful, interesting, or both. Now, fortunately, I’m finishing up, but I wanted to close with one broader thought, going beyond the purely legal RFRA question. (I should also note that this thought is even more tentative than some of the ones in the earlier posts, precisely because it’s about pragmatic and moral matters on which I’m not expert, rather than on legal matters.)

One common argument in favor of religious exemptions is that, if possible, people should be able to live full lives as Americans without having to violate their religious beliefs — even if that means that our legal system will change in some measure to accommodate those beliefs. In large measure, the American legal system has provided such accommodations. Indeed, at least throughout much of America’s history, it provided them far more than nearly all other countries.

This willingness, I think, has been a source of American strength. It has brought people of all religions to our shores, at a time when such immigration was vital to our prosperity. (I think immigration remains vital to our prosperity even today, but let’s set that debate aside for now.) It has helped America harness the energy of all its residents, minimizing the sense of alienation that religious minorities have felt.

And it has helped America largely avoid the religious conflicts of Europe, conflicts that the Framers were keenly aware could lead even to civil wars. The beneficiaries of such accommodations have been many and varied: Quakers, Catholics, Jews, and many more. I myself am not religious, but I think this tradition of accommodation is worth preserving (recognizing, of course, that not all practices should be accommodated, for the [...]

Continue Reading 0

5C. RFRA Strict Scrutiny: The Interest in Protecting Newly Created Private Rights

[Please note the UPDATE below.] (For an introduction to this series of posts, see here.)

Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on an interest that is little talked about in the briefing of the various employer mandate exemption cases, but that I think strikes a chord with many people who have expressed concern about the exemption requests. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting employee private rights, since it would provide employees with the same benefits as they would get under the unmodified employer mandate.)

1. Let me start by approaching the question indirectly. Say that someone feels religiously motivated to make a pilgrimage to a particular place — for instance, a supposed visitation of the Virgin Mary. And say that this place happens to be on an unimproved parcel of land you own somewhere. That would normally be a trespass, but the pilgrim sues for an exemption from trespass law under RFRA.

I take it that courts wouldn’t, and shouldn’t, create such an exemption. Indeed, the compelling interest test provides a means for courts to avoid creating such an exemption — the compelling interest would be in preventing intrusion on your property rights. And it doesn’t matter that the intrusion would actually cause only modest harm to you, or that allowing the intrusion would cause only modest harm to the social [...]

Continue Reading 0

5B. RFRA Strict Scrutiny: The Interest in Sex Equality

(For an introduction to this series of posts, see here.)

Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on the interest in sex equality. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting sex equality, since it would provide women employees with the same benefits as they would get under the unmodified employer mandate.)

1. One version of this interest is in preventing intentional sex discrimination. When an employer refuses to cover contraceptives that can only be used by women, the argument would go, it is engaged in sex discrimination, just as if it paid women less — even only a bit less — than men. The Court would likely find the interest in preventing such sex discrimination in employment to be compelling. See Bob Jones Univ. v. United States (1983); Roberts v. U.S. Jaycees (1983).

The problem with this argument is that the Court has never treated regulations of abortion as tantamount to sex discrimination, even though only women can get abortions. (I don’t want to focus here on whether that’s right or wrong; I’m just speaking of what the majority view on the Court has been, and is likely to be.) Indeed, the Court rejected such an argument in Bray v. Alexandria Women’s Health Center (1993). It rejected an Equal Protection Clause challenge to the exclusion of abortion from federal funding in Maher v. [...]

Continue Reading 0

5A. RFRA Strict Scrutiny: The Interest in Protecting Health

(For an introduction to this series of posts, see here.)

We can now get to what I think should be the heart of the case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” I don’t know what the answer to that is, because this test is so undefined; my thinking here is also quite tentative, and I’m certainly open to being persuaded. But I thought I’d post today about three possible interests — protecting health, providing for sex equality, and protecting newly created private rights — and say a few words about them.

1. This post focuses on the interest in protecting health. Under RFRA, it’s not enough for the government to point to how the Affordable Care Act writ large supposedly protects health. Nor is it enough for the government to point to how the coverage for contraceptives generally would protect health. Rather, the question is whether denying the limited religious exemption that is being sought here — the exemption for the particular potentially implantation-preventing contraceptives to which the claimants object — would undermine a compelling interest in protecting health, so that denying the exemption would be the “least restrictive means” of protecting health. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.”

Moreover, the “least restrictive means” requirement shows that the existence of a compelling interest isn’t enough. Under RFRA, the government must consider creative ways of serving its compelling interests while at the same time accommodating, to the extent feasible, religious objections.

2. It seems to me that a compelling interest in [...]

Continue Reading 0

4B. RFRA Strict Scrutiny: The Argument from Secular Exceptions

(For an introduction to this series of posts, see here.)

On then to another general argument — the argument that, regardless of the specific interests the government asserts in support of the employer mandate, those interests don’t count because the law has secular exceptions. One version of the argument is that such exceptions make the law “underinclusive,” and thus prove that the government interest can’t be compelling. A related version is that, under RFRA, religious exemption claims are entitled to be treated as well as the most favored other claims for exemption. Here is how the Tenth Circuit en banc majority opinion in Hobby Lobby put it:

The government asserts two interests here: “the interests in [1] public health and [2] gender equality.” We recognize the importance of these interests. But they nonetheless in this context do not satisfy the Supreme Court’s compelling interest standards….

[T]he interest here cannot be compelling because the contraceptive-coverage requirement presently does not apply to tens of millions of people. As noted above, this exempted population includes those working for private employers with grandfathered plans, for employers with fewer than fifty employees [who don’t have to provide any health insurance -EV], and, under a proposed rule, for colleges and universities run by religious institutions. As the Supreme Court has said, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi; see also O Centro (citing Lukumi as instructive in determining whether exemptions undermine a compelling government interest for purposes of RFRA). The exemptions at issue here would yield precisely this result: they would leave unprotected all women who work for exempted business entities.

Now it’s not clear to me that all the exceptions “leave[] appreciable damage to [both] [...]

Continue Reading 0

3A2 [extra]. A Brief Note on the “Substantial Burden” Requirement

I’ve argued below that, if someone believes that it’s religiously wrong for him to be complicit in certain behavior, requiring him to act in such a way is a “substantial burden” on his religious practice under RFRA. This is true even if you and I might define complicity differently, and might view the particular actions involved in the case as too indirect to constitute complicity. Some readers have asked: What then does the qualifier “substantial” do?

Here’s a general summary of how the Court has defined “substantial burden”:

1. Requiring people to do something that “is forbidden by [their] faith” qualifies as a substantial burden on religious practice. See, e.g., United States v. Lee (1982); Hernandez v. Commissioner (1989). So does requiring people not to do something that is required by their faith. Indeed, even requirements that people do something forbidden by their faith in order to get important benefits (such as unemployment compensation) are generally a substantial burden. Thomas v. Review Bd. (1981). Requirements that people do something forbidden by their faith to avoid punishment, including fines, are at least as clearly substantial burdens.

2. “While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Thomas. And that is so even where the relevant “conduct proscribed by a religious faith” is indirect complicity in other conduct, and the complicity line that the religious claimant draws appears inconsistent or unsound to the reviewing court. Id.. “It is not for [secular courts] to say that the line [the claimant] drew was an unreasonable one.” Id.

3. What, then, is not a substantial burden? To give one example, “to the extent that imposition of a generally applicable tax merely decreases the amount of money appellant has to spend on its religious activities, any such burden is [...]

Continue Reading 0

4A. RFRA Strict Scrutiny: The Slippery Slope Question

(For an introduction to this series of posts, see here.)

So far, I’ve argued that Hobby Lobby likely has a good case as to the claim that the employer mandate substantially burdens religious exercise, because the mandate requires Hobby Lobby to do something — fund potentially implantation-preventing contraceptives — that Hobby Lobby’s owners believe is religiously forbidden. But of course not all substantial burdens on religious exercise require an exemption under RFRA. RFRA provides that “[g]overnment 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.” And this “compelling interest test” (also known as “strict scrutiny”) seems to refer to the test “set forth in prior Federal court rulings” decided under the Free Exercise Clause during the Sherbert/Yoder era.

This, I think, is the most unpredictable part of the Hobby Lobby case, because prior rulings are largely unclear on what constitutes a “compelling governmental interest,” and what the “least restrictive means” requirement means. Moreover, while the strict scrutiny test in race and free speech cases has generally been seen as “strict in theory, fatal in fact” (Gerry Gunther’s phrase), almost always invalidating the government law, this hasn’t been so in religious exemption cases.

Larry Sager and Chris Eisgruber labeled the religious exemption strict scrutiny test “strict in theory, feeble in fact,” and while the Court’s one RFRA case — Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) — seemed to use strict scrutiny in a moderately muscular way, the most we can say is that religious objectors will sometimes win under the test and sometimes lose. In the coming posts, I’ll try to mine the religious exemption precedents for what insight they can [...]

Continue Reading 0

3B. Would Granting an Exemption from the Employer Mandate Violate the Establishment Clause?

(For an introduction to this series of posts, see here.)

In the preceding post, I’ve argued that Hobby Lobby might well prevail on the claim that the employer mandate substantially burdens its owners’ religious practice. This means that Hobby Lobby would be presumptively entitled to an exemption under RFRA, though that presumption could be rebutted if denying the exemption is the least restrictive means of serving a compelling government interest. (I’ll turn to that tomorrow.)

But for now, let me discuss the argument that granting such an exemption would violate the Establishment Clause, “[b]ecause exempting large, for-profit corporations from the contraception mandate would significantly burden female employees, along with all the wives and daughters covered by the policies of male employees.” (I quote here a Slate piece by Micah Schwartzman & Nelson Tebbe, though the argument was also made in much more detail in this law review article by Fred Gedicks & Rebecca Van Tassell.)

If the argument is right, then not only is Hobby Lobby (alongside similar employers) not entitled to a RFRA exemption — it couldn’t get an exemption even if Congress or the Administration were eager to create such an exemption. Thus, for purposes of this post I will assume that Hobby Lobby and similar employers are statutorily given this exemption, and I will ask whether that would be constitutional. I won’t ask whether RFRA calls for the exemption; that is a story for tomorrow.

1. To begin with, let’s be precise about the effect of an employer mandate exemption would have on employee: If the employees want certain implantation-preventing contraceptives, they would have to buy them with their own funds, rather than getting them for free through an employer-provided health insurance plan. They would thus be in essentially the same legal position [...]

Continue Reading 0

3A. Does Requiring Employers to Provide Insurance Covering Certain Behavior Substantially Burden Employers’ Religious Practice?

(For an introduction to this series of posts, see here.)

* * *

1. Some people have argued that RFRA shouldn’t apply in Hobby Lobby because the employer mandate doesn’t require employers to actually do anything they see as sinful. The employers aren’t required to use the implantation-preventing contraceptives that they see as immoral. They aren’t required to administer them, or even handle them. They are just required to provide insurance policies that their employees may then choose to use to buy those contraceptives. (Note thats this argument would apply to employers who are sole proprietors as well as to employers who own the business through a corporation, so I largely won’t focus on the corporation point in this post; for more on that, see this post. [UPDATE: I did add a few sentences to the post below that touch briefly on the corporation / substantial burden interaction, but the bulk of the corporation discussion remains in the earlier post.])

And this argument would be perfectly valid if a RFRA claim is brought by an employer who thinks the only relevant sin is actually using the implantation-preventing contraceptives. If the employer is called to the stand and was asked, “Do you think that it is religiously wrong for you to provide this insurance?,” and the employer says, “no, that’s fine, only using the contraceptives is sinful,” then the employer has admitted that the employer mandate does not impose a substantial burden on his beliefs.

But, unsurprisingly, many people believe that, when some behavior is wrong, many sorts of complicity with that behavior are wrong, too. Many secular people believe this. The law takes this view, in all sorts of contexts. Religious people believe it, too.

True, people disagree about when complicity stops. Some people think that race discrimination [...]

Continue Reading 0

2B. Does RFRA Allow Exemptions from Burdens Imposed on Corporations?

(For an introduction to this series of posts, see here.)

Much of the recent debate about Hobby Lobby and similar cases has focused on whether RFRA allows exemptions from burdens imposed on corporations. As before, let me approach this question by considering some hypotheticals that don’t invoke the hot political passions generated by the employer mandate, or by questions related to abortion. In all of them, assume that we are in a jurisdiction in which the federal Religious Freedom Restoration Act or one of its state analogs applies.

Let us focus on the three examples mentioned in the preceding post, but tied to closely held corporations. Imagine that a newly enacted law requires all markets to sell state lottery tickets. and say that a particular market is owned by a corporation that is wholly owned by members of a United Methodist family, who believe it’s against their religion for any business that they own, directly or indirectly, to sell lottery tickets. Or imagine the same as to a law requiring all markets to sell beer and wine, and owners of a Methodist or a Muslim family corporation object to this because they think selling wine is sinful. Or say that a law requires all gas stations to operate seven days a week, and say that a particular gas station is owned by a corporation owned by members of a Jewish or Seventh-Day Adventist family, who believe that it is wrong for any business that they own to operate on the Sabbath.

All the store-owning corporations, together with the individual owners of those corporations, sue, seeking an exemption from the lottery ticket mandate, alcohol mandate, or the seven-day-a-week mandate. Should all these claims be rejected, on the theory that (1) corporations lack RFRA rights, and (2) the owners of the [...]

Continue Reading 0

2A. Do Religious Exemption Rights Extend To Commercial Behavior?

(For an introduction to this series of posts, see here.)

Let us turn now more closely to the issues raised by Hobby Lobby, but take them one at a time. The first issue is: Should religious exemption rights even be seen as applicable to commercial activity, or should they be limited to objectors’ noncommercial activities (such as Amish parents’ not sending their children to school past age 14, or people’s consumption of hallucinogens for religious purposes)? I think the answer is that the Court shouldn’t, and likely won’t, recognize any “noncommercial activities” limitation on the Religious Freedom Restoration Act.

1. To begin with, let’s consider some hypotheticals that don’t invoke the hot political passions generated by the employer mandate, or by questions related to abortion. In all of them, assume that we are in a jurisdiction in which the federal Religious Freedom Restoration Act or one of its state analogs applies. And assume, for now, that the store is owned by the owner directly, rather than by a corporation that is owned by the person. (I’ll turn to the corporation question in the next post.)

Imagine that a newly enacted law requires all markets to sell state lottery tickets — an attempt by the legislature to raise more money for the state. And say that a particular market is owned by a United Methodist who believes it’s against his religion for any business that he owns to sell lottery tickets. (Some Mormons and Muslims also believe gambling is sinful.)

Or imagine the same as to a law requiring all markets to sell beer and wine — though I realize this is probably politically less likely — and a Methodist or a Muslim market owner objects to this because he thinks selling wine is sinful. Or say that a [...]

Continue Reading 0

1C. How RFRA May Make Religious Exemption Claims More Appealing to Courts Than They Were in the Constitutional Exemption Era

(For an introduction to this series of posts, see here.)

The RFRA religious exemption regime may seem less exemption-friendly than the Sherbert/Yoder-era constitutional exemption regime, precisely because it is only statutory. If Congress (or, for a state RFRA, a state legislature) dislikes an exemption that courts have recognized, it can pass a new statute rejecting that exemption. Congress can even block such exemptions proactively, for instance by saying up front that some statutes won’t be subject to religious exemptions. (Some state legislatures have indeed done that.)

The 1993 Congress could not bind future Congresses — only a constitutional amendment can do that — and it didn’t purport to try. RFRA makes clear that future statutes could be excluded from RFRA’s scope if “such law explicitly excludes such application by reference to [RFRA].” It also seems likely that they would also be excluded if “the plain import of a later statute directly conflicts with an earlier statute” (though courts are reluctant to find such direct conflicts because of the “powerful presumption against implied repeals”). As a result, exemptions recognized under RFRA, unlike exemptions recognized under the Free Exercise Clause in the Sherbert/Yoder era, are at the mercy of the legislature.

It’s possible, though, that the RFRA regime may sometimes prove to be more religious-exemption-friendly than the old constitutional exemption regime, precisely because it is statutory. A court may be reluctant to accept a close constitutional claim precisely because accepting it would permanently bind the legislature. Even a judge who thinks that granting a religious exemption from (say) a peyote ban might not cause that much harm, and who thinks the legislature might not have considered this particular question when it banned peyote, may be hesitant to tie the legislators’ hands by declaring that [...]

Continue Reading 0

1B. Why Have RFRA-Like Religious Exemption Regimes?

(For an introduction to this series of posts, see here.)

The previous post in this series has explained what RFRA is, and what general rules it sets forth. For nearly all the remaining posts, I’ll take RFRA as given, and not deal with the broader question of whether having such a statute is a good idea. (That’s a perfectly sensible question to ask, but it’s not one that the Court will have to confront in Hobby Lobby.) Still, I think it’s helpful to think a bit about what the main arguments for RFRA are — whether you accept them or not — since this may help us understand how the Court will interpret RFRA.

RFRA begins with the findings that, “the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution,” and “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” To this point, this might sound like a justification for massive protection. Does your religion require you not to pay any taxes to what you see as a corrupt, un-Godly government? Well, tax laws may burden this religious exercise as surely as laws intended to discriminate against your religion, and, hey, your free exercise of religion is an “unalienable right.”

But of course our legal system has never accepted any such view of free exercise. Likewise if your religion requires you to make pilgrimages to a visitation of the Virgin Mary on my property, or to take my property and give it to the poor, or to kill me for blaspheming, or to do many other things that the legal system forbids with no regard for religious objections.

Even if we set aside religious actions [...]

Continue Reading 0