Yesterday the Supreme Court heard one of the hottest-button cases of the year: whether a company owned by religious people can claim an exemption from the Affordable Care Act provision requiring that businesses offer health plans that include comprehensive contraceptive coverage.
The answer, of course, should be “no” in any sensible universe. Nobody is questioning the sincerity of the beliefs of the people who own the Hobby Lobby company, or who own Conestoga Wood Specialties (the company involved in a companion case presenting the same issue). But the simple fact is that those people, when they set up their businesses, decided to form for-profit corporations, presumably in order to take advantage of the numerous benefits that for-profit status gives them (most notably including drastically limiting their own personal liability for the debts of the businesses). And, as the U.S. Court of Appeals for the Third Circuit said in ruling against Conestoga Wood and explaining why the rationale of Citizens United (which held that corporations have free speech rights) did not apply to the free exercise of religion:
we are not aware of any case preceding the commencement of litigation about the [contraception] Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.
After all, as the Supreme Court observed in Schempp, the purpose of the Free Exercise Clause “is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.” And as the District Court aptly noted in its opinion, “[r]eligious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely ‘human’ rights provided by the Constitution.” We do not see how a for-profit “artificial being, invisible, intangible, and existing only in contemplation of law,” that was created to make money could exercise such an inherently “human” right.
We are unable to determine that the “nature, history, and purpose” of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision. Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion.
Later in the opinion, the court rejected a “pass-through” theory for why the Conestoga Wood company should be exempt, explaining once again the importance of the owners’ decision to conduct its business through a for-profit corporation:
The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns. We hold … that the free exercise claims of a company’s owners cannot “pass through” to the corporation.
That strikes me as a pretty well unanswerable argument. It seems to me that we can leave the more difficult questions regarding religious organizations (some of which adopt corporate form), non-profit corporations, etc. for another day. The present case requires the Court only to decide whether a for-profit, secular corporation can “exercise” religion within the meaning of the Constitution or the Religious Freedom Restoration Act. It should be perfectly obvious that it cannot. If the Court decides otherwise – and, sadly, the indications seem pretty good that it will, though tea-leaf reading from oral argument is a perilous exercise – that will reflect just how far astray the Supreme Court’s jurisprudence in the area of corporate “rights” has gone.
And a fair one in my view. I think a lot of ink has been spilled against the two plaintiffs from our side that was unnecessary. I do not question the sincerity of their beliefs, and I laud them as Christian companies that actually pay living wages and provide health care to their employees* unlike a certain other ‘faith and family’ company based out of Arkansas that does no such thing.
But that’s entirely the point. As a for-profit company the sincerity of their beliefs doesn’t matter, and expanding the standard of the RFRA which was explicitly amended to exclude for-profit companies would be the move of an activist court invalidating a statute passed by a broad bipartisan majority of Congress to invent new law. There is no way the right wing of the court could credibly rule in favor of the plaintiff’s without inventing new case law and legislating from the bench-the very things they tend to critique our side for doing.
But we have already seen the Roberts Court nearly invalidate the duly passed Affordable Care Act on activist grounds, and actually invalidate the even more broadly supported Voting Rights Act on activist grounds. In both of those cases, it was the liberal side pursuing the moderate course of differing to duly elected legislators and refusing to make policy decisions from the judicial branch. It is clearly the same thing here.
Dahlia Lithwick has a good summary over at Slate, and my respect for Kagan and Sotomayor has only grown as time has gone on. At the time of their nomination I would’ve preferred a more activist liberal like Diane Wood, but their line of questioning seems artfully designed to win over Kennedy and to make a rather moderate argument. As Kagan and Sotomayor point out, ruling for the plaintiff would invalidate a good chunk of the statute and put the court in the position of determining the sincerity of the religious beliefs of every single employer petitioning the court. What is to stop a larger employer (again I mention that unnameable Arkansas based ‘family company’) from claiming the broadly designed religious exemptions to ACA requirements given to non-profits and churches as a cynical ploy to avoid providing healthcare entirely?
Anyone concerned about women’s health should be concerned about this ruling, but more importantly, anyone concerned about keeping the ACA viable should be concerned. Were a broad ruling to come out of the court it would not only weaken the contraceptive mandate but weaken the employer mandate more broadly. It could clog up the courts in needless litigation to determine the religious sincerity of the employers trying to unload their coverage. And as Justice Kennedy wisely asked (which hopefully is a positive sign), don’t the employees have rights as well (such as a right to pivacy from Griswold or reproductive health from Roe) that could be trumped by their employer?
Roberts and Alito seem to be going out of there way to get a narrow ruling that covers the four particular contraceptive methods for these two specific companies that object to them (falsely) as abortifacients, and one could see Kennedy going along with that to split the difference. Hopefully the more extreme members of the court (Uncle Thomas and Nino) scare Kennedy away. One sure wishes Sandra Day O’Connor hadn’t retired when she did, she always handled religious cases very well.
*Hobby Lobby’s sincerity can be questioned since they actually provided full contraception on their own until the mandate, but the Mennonites seem to be practicing what they preach and I’ve always had a soft spot for them
I’ll question the sincerity of their beliefs. I think they’re right-wingers trying to open the flood gates (or unleash the “parade of horribles,” to quote their lawyer).
I respect the owners of Hobby Lobby as good employers (unlike that Arkansas family), but they are asking for the right to be bad employers, and that I can’t abide. They funded these methods prior to the ACA and either were convinced to be made a test case by the fundies or volunteered. Either way, it smacks of hypocrisy to oppose a government mandate to fund something you already covered on your own.
I think the Mennonites are actually sincere, and I respect that they also refuse to serve in the military and are fairly consistent in their beliefs. The Anabaptist tradition has always been very stand offish about participating in the state, though the Prospect has an intriguing article about evangelicals and conservative Protestants adopting rather Catholic theology on contraceptives they didn’t have before recently. I am sure Vincent Peale is rolling over in his grave.
As Lithwick analyzed and I agreed with in my initial comment, and as you alluded to, regardless of whether Hobby Lobby is sincere or not, it’s entirely irrelevant. As a for-profit organization they shouldn’t subject their employees to their religious preferences, and creating this standard would indeed open the floodgates, abuse this exemption, and clog the courts with unnecessary frivilous torts-the very thing the Federalist Society rails against!
The entire case smacks of hypocrisy from start to finish, sorry if my initial post made that unclear.
Drawing a distinction between exemptions for large corporations and closed corps (companies tightly held and operated by a small group of people) would be a flimsy branch on which to rest an argument based on the RFRA. A decision based on those grounds seems to invite a situation where the government is required to assess the sincerity of person’s (who no one obviously disputes have Exercise Rights) religious beliefs.
But just remember “Corporations are people too, my friend.” /s/ Mittles
Maybe a consequence of this fight will be to get employers out of the coverage business entirely and move to single payer.
Health insurance as well as actual wages do not belong to the employer. They are the property of employees for use of their labor. How they spend it is not up to the employer. Even if payment for the morning after pill or IUDs(the contested health coverage) were removed from the insurance, it would be paid for by the agreed upon cash wages.
Religion is individual and not collective. Each adherent decides how they will practice e.g. over 90% of Catholics use contraceptives. No other person whether an employer, clergy, or the man in the moon has a right to impose dogma on another. They may persuade, but they cannot dictate.
The very definition of liberty is under attack here since reactionaries believe it extends beyond themselves. So much for their view of rugged individualism.
Excellent write-up, and I agree entirely.
If I had to guess, the majority will side with the corporations, but decide the case on the basis of the Religious Freedom Restoration Act rather than the First Amendment. For one, this gives Scalia and Kennedy a possible way to distinguish their votes in this case from their majority votes in Employment Division v. Smith.
But that just raises another problematic aspect of that argument — the statute was clearly meant to simply replace the legal standard announced in Smith with the “strict scrutiny” standard that had been in place previously in cases like Wisconsin v. Yoder (a test that essentially made it easier for people to challenge government policy on Free Exercise Clause grounds).
It was not meant, however, to convey existing rights to an entirely new class of entities. In other words, there is absolutely no logical way to read the statute to believe that it meant to create new constitutional rights for corporations. It was simply replacing the existing constitutional standard from the Court’s controversial decision in Smith with the previous legal standard.
In short, the statutory arguments here clearly fare no better than the constitutional ones. (Yet, unfortunately, that’s where I’m inclined to think that this is heading).
That Kennedy feels employees would be burdened more by their
employers than the employers are by the state. He seems to indicate in his questioning that he is obviously uncomfortable with the government mandate (which makes sense considering his dissent in the ACA case) but also with employers enforcing their beliefs on others.
Roberts also seems highly reluctant to make an exception so broad Wal-Mart could ride through it, but either rule in favor of these specific plaintiffs or corporations of a similar size and composition.
Overall though, it is shocking that more are
not outraged at how activist and politicized this court is. There is no way around it-they are inventing law and a bad one at that.