Today is the final day of the Supreme Court’s 2013-2014 term, and, as expected, it saw the announcement of two hot-button cases: Burwell v. Hobby Lobby Stores, Inc., and Harris v. Quinn. Both were 5-4 decisions with the depressingly predictable conservative vs. liberal alignment, and both were authored by Justice Samuel Alito (more on that below). Both were conservative “victories,” but neither went as far as it could have.
You’ve probably heard of the Hobby Lobby case, which concerns the Affordable Care Act’s requirement that employers provide basic contraceptive services as part of a health care plan. You might not have heard of Harris, which is about public employee unions’ ability to compel non-members to pay certain “agency fees” to the union. In brief, the Harris decision called into question – but did not squarely overrule – an earlier decision that permitted public employee unions to charge such fees to non-members. The Court did hold that unions cannot charge such fees to “partial public employees,” such as the home health care aides at issue in that case. But the case appears to have no immediate application to “full-fledged public employees,” such as teachers. That’s about as much as I know about this case, which may have broader implications of which I’m not aware. There will be much more coverage of it at SCOTUSblog later today.
The biggest-ticket item today (and maybe of the whole term) was Hobby Lobby. The bottom line is that Hobby Lobby won, which means that it cannot be required to comply with the ACA’s contraception mandate. Let’s look at a couple of important points.
- This is not a First Amendment case. This is an important point that may get lost in a lot of the coverage and reaction. The First Amendment protects the “free exercise” of religion, and Hobby Lobby did bring a First Amendment claim against the mandate. But the case was decided instead on the basis of a federal law known as RFRA (“Religious Freedom Restoration Act“). RFRA was enacted in response to earlier Supreme Court decisions, most notably Employment Division v. Smith, which held that adherents of a particular religion (in that case, Native Americans who used peyote as part of a religious ceremony) could not claim exemption from generally-applicable laws under the Free Exercise Clause. In response, Congress enacted RFRA, which imposed a much more stringent test than that applied in Smith on whether the government may burden religious practices. Today’s case was decided under RFRA; the Court explicitly said that it was not addressing Hobby Lobby’s constitutional claims. Therefore, though it’s admittedly unlikely in today’s gridlocked Congress, it’s in theory possible for Congress to undo today’s decision.
- Hobby Lobby won because the government already accommodates non-profit religious corporations. Under RFRA, a government regulation that “substantially burdens” a person’s exercise of religion (more on whether corporations are “persons” below) can be sustained only if the regulation advances a compelling government interest, and is “narrowly tailored” to that end – i.e., it’s the least restrictive available means of advancing the government’s interest. The Court placed a lot of weight on the fact that, under the ACA, religious corporations like churches are able to opt out of contraceptive coverage. From Alito’s opinion:
HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.
Interestingly, there is another round of litigation working its way through the courts in which religious corporations are arguing that even this accommodation impinges on their religious beliefs, because it makes them party to their employees receiving contraception of which they disapprove. The legality of the accommodation was not squarely resolved by today’s decision, so the possibility exists that, having held the accommodation out as an acceptable alternative in this case, the Court could later hold that, in fact, that accommodation is itself unacceptable. Wouldn’t that be something.
- This case applies only to “closely held” corporations. Hobby Lobby (and the other corporation involved in the case, Conestoga Wood Specialties) are both “closely held” corporations, which the IRS defines as corporations in which more than 50% of the shares are owned by five or fewer individuals. Closely-held corporations are often (but not always) family-owned, and their shares are rarely (but occasionally) traded on public exchanges. However, just because a corporation is closely-held does not mean that it’s small. Forbes publishes a list every year of the biggest closely-held corporations in the country, and in 2013 the list featured familiar names like Cargill, Koch Industries, Dell, Bechtel, Mars, and PriceWaterhouseCoopers. When ranked in terms of number of people employed, the six largest closely-held corporations employ just over a million people. Some large Massachusetts-based closely-held corporations include Cumberland Farms, Fidelity, Bose, New Balance, Bain, and HP Hood. The Supreme Court’s opinion in Hobby Lobby does not have any immediate application to public companies, but it does potentially impact people who work for any closely-held corporation. For example, we can be pretty sure that the thousands of people who work for the 70-odd companies who had already sued over the contraceptive mandate will be directly affected.
- Justice Alito’s opinion tried really hard to limit how far it goes. One of the biggest arguments against the position taken by Hobby Lobby is that it could open a veritable Pandora’s Box of other RFRA-based exemptions. Sincerely held, religiously-based objections to vaccinations and blood transfusions (among other common procedures) are well known, and one can easily imagine claims in other contexts that could prove problematic in the workplace, such as beliefs regarding how people must dress in public. If Hobby Lobby doesn’t have to cover birth control, why should a corporation owned by a family of Jehovah’s Witnesses have to cover blood transfusions? Here’s Justice Alito on some of those concerns:
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
The principal dissent [by Justice Ginsburg] raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
Well, let’s just say that the notion that other medical procedures “may” involve other considerations is not especially comforting. We have surely not yet seen the last of litigation challenging how extensive health coverage must be under the ACA.
- Corporations are still people. In one of the most potentially pernicious parts of the opinion, Justice Alito went all-in on the notion that there’s no problem attributing the concept of religious exercise to a corporation. In addition to defying common sense, this decision adds to the growing list of Supreme Court cases that will need to be overruled if we are to return to a sensible jurisprudence regarding the rights of corporations. That is an unfortunate development.
- It’s really weird that Justice Alito wrote this decision. On the Supreme Court, the senior Justice in the majority decides who writes the opinion. Normally, the bigger the case, the higher up the food chain its author. In this case, we have the exact opposite: apparently, Chief Justice Roberts (the senior Justice in the majority) assigned the hottest case of the year to the majority’s most junior Justice, Samuel Alito. Even stranger is the fact that, at the March sitting at which Hobby Lobby was argued, three of the more senior Justices in the majority (Roberts, Kennedy, and Scalia) did not write any opinions. I’m frankly at a loss for a convincing explanation as to why this would happen. The only thing I can think of is that, often, the junior Justice is assigned technical opinions arising out of complex federal statutes like ERISA or the Medicaid statutes. Since this is a RFRA case, it kinda sorta fits into that box if you squint and tilt your head. But not really.
- The Obama administration can and likely will move quickly to resolve the immediate issue. Because this issue arises out of regulations issued by the federal Department of Health and Human Services, that agency can presumably amend its regulations to guarantee that coverage for women who work at the affected corporations is not disrupted. One option would be simply to take the Supreme Court’s suggestion and extend the availability of the accommodation for religious corporations to closely-held for-profits (though that potentially raises a different issue, as discussed above). In any event, look for fairly swift action from HHS.
I’m glad I read all of this… but really, it shouldn’t be all on the front page david.
Can someone explain to me, using SCOTUS logic, why this applies to some (all?) birth control but not to vaccines, blood transfusions, etc.? Also, what does it take to move from “crazy ideas” to “official religion”? I mean, what’s stopping someone from opening up a “Church of Assurances, not Insurances” whereby companies believe in the tenants of not providing lots of different kinds of medical insurance?
as I noted in the post, is very difficult. Alito tries to limit his opinion to contraception only, by saying that maybe there will be other ways of dealing with cases like vaccines and transfusions, but it’s hard to see what they would be.
Other than “because I said so”, I don’t see how the logic of the opinion doesn’t squarely apply to vaccine coverage requirements:
1. We already recognize religious exemptions from vaccination requirements (e.g. children entering school), so the burden is clear.
2. Vaccine requirements nevertheless ensure that most people without a religious exception will get properly vaccinated.
3. Governments (including the federal government) already run free vaccine programs.
So how is expanding the eligibility (and possibly the vaccines supplied) by free vaccine programs not a less restrictive means of promoting the government’s interest in vaccination? Especially if the vaccine in question is Gardasil.
I haven’t read the decision yet, but from reports, there isn’t great logic there except that they just explicitly limited it to that issue. Ginsburg attacked that in her dissent.
As far as the logic goes, though, it seems like this will open the door for a lot of other questions, although presumably (hopefully) closed the door on allowing corporations to sidestep a lot of federal mandates because of religious reasons.
As David notes, Alito’s limiting it to contraceptives only is difficult, considering the opinion gives no guidance to lower courts on this point. It’s important to note that (contrary to some comments I’ve seen on social media) the opinion does not explicitly say that contraceptives are in a category by themselves. But in a sense, that’s what I’m worried about — I just don’t see a limiting principle here.
As to your second point, courts generally don’t try to define what a “religion” is (probably a good idea), but they do require beliefs to be “sincerely held”. The hypothetical you mention seems like the religious beliefs are made up to take advantage of a loophole, and would not be “sincerely held.” In this case, even the dissent did not dispute that the Hobby Lobby owner’s beliefs were sincerely held.
Here’s a another question, though: while this wasn’t a constitutional case, one would expect Scalia to write separately to explain his views, no? This seems inconsistent with much of what Scalia’s written before in “free exercise” (albeit constitutional, not statutory) cases.
Some very famous.
And nobod expects them!
wants to look to Christian vs. non-Christian religions as the distinguishing factor in Scalia’s various positions on these kinds of cases. But I’m sure that’s not it.
That would certainly explain his vigorous dissent in support of religious liberty in Employment Div v. Smith, right?
Oh.
The hop on his fastball is long gone, he is now several decades removed from any pretense of intellectual consistency, and his jurisprudence is now more or less reduced to peevish sneering.
Religious organizations are already exempted from the contraceptive mandate part of the ACA. The conservative logic is if some organizations are exempted from this mandate, then the government interest in this mandate is inferior to other mandates included as part of the ACA like providing basic health care. This changes the balancing test, but the bigger issue is there should be no balancing test because corporations are not people and they certainly don’t have religious beliefs.
A question I never got answered: if corporations have religious beliefs, when are their holidays?
Although it would all just be speculation at this point, I wonder how this might apply to dual class share structures, in which a small group of people (such as a few founders or a family) hold a majority of a certain class of stock with superior voting rights in a publicly traded company.
There are definitely some aspects of those arrangements that are similar to the structure of a closely held corporation.
that, I think, reflects the fact that most Supreme Court Justices don’t actually know very much about how corporations work. Few if any have concrete experience with modern corporate law. For example, Justice Alito, the author of today’s opinion, has no experience in private practice; before he became a judge he was a federal prosecutor and government lawyer.
This is essentially a decision to advance the religion-based corporation-based political agenda of the Republican majority on the court. Those are the people who put them in office, who support them today, and who they likely concur with as a matter of personal conviction. From that perspective it is easy to see why Alito was the one to write the decision: he is a true believer.
That’s what I don’t get. Even on your view of the way things work up there, it’s really very odd that Alito wrote the opinion.
That was a big surprise to me too. This is (of course) pure speculation, but I wonder how much of this may reflect a certain schism between Roberts and Scalia.
One would expect that if, for whatever reason, Roberts did not want to take Hobby Lobby for himself, that he would give it to Scalia, who is both the longest-sitting justice and also had not written any opinions for the March sitting. But he bypassed him in favor of Alito. Further, looking at the other opinions Scalia wrote this term, they aren’t among the most important ones. In fact, nearly all of Scalia’s opinions were in unanimous cases. The most contentious was probably Utility Air, but Scalia’s opinion actually upheld a key part of the administration’s program in that case.
At Balkinization, Mark Tushnet suggested that members of the Court, including Roberts, seemed more willing to take on Scalia’s combative tone this term. Perhaps this, and the case assignments, indicate that Roberts is getting tired of Scalia’s schtick?
but what about Kennedy? He’s been on the Court almost as long as Scalia, he also didn’t write anything from the March sitting, and he’s anything but combative. And he’s written plenty of important religion cases.
maybe the Court’s most important RFRA case before today.
Alito’s writing style seems quite straightforward — at least, certainly more so than Kennedy (who in a full opinion would have probably found a way to wax eloquently on vague moral philosophy). Perhaps Roberts wanted this decision written more narrowly and tightly.
There must be something going on since this just doesn’t seem to make sense, but unfortunately we’ll likely never know. But it is always fun to speculate!
“it could have been worse.”
Perhaps a closely held corporation is similar to a woman closely held in one of Mitt Romney’s binders.
And my corporations, even closer.
doesn’t this mean that this decision in effect brings us one step closer to something the theocrats hate as much as birth control: “socialized medicine”?
which is yet another of the case’s ironies. All of this could be avoided if everyone would just get behind single payer.
“The Court refused to grant cert to a case challenging California’s ban on ex-gay therapy for minors, leaving the ban in place.“
This Court has seemed to be largely LGBT-friendly – would you agree?
Rather, a slim majority of the Court. Four are profoundly anti-gay.
…but all it takes is 5, as the Hobby Lobby case reminds us.
And I think the Court has realized that there’s no longer a need to be anti-gay in order to be pro-billionaire. As a matter of fact, if you’re somewhat pro-21st century, you get some slack on ushering in a return to feudalism.
…it’s really only Justice Kennedy that is the pivot. I suspect when he vacates his seat securing his replacement is going to be the biggest bloodbath we have seen regarding a Court appointment.
GW Bush the presidency in the face of their career long pattern of decisions? It doesn’t matter much what the logic was, the only thing that matters is the decision and the resulting outcome from it. We still have to live with it.
Apparently it can, since no one is disputing that RFRA or whatever it is called, trumps the ACA.
Any lawyers out there that can answer this?
which, to my knowledge, was not raised in the case. I suppose the gov’t could have argued that, to whatever extent RFRA and the ACA are inconsistent, the ACA should be understood to have partially repealed RFRA to that extent. But I’m pretty sure there’s nothing explicit in the ACA that would suggest an intention to partially repeal RFRA in that way. In any event, nobody argued it, so it wasn’t part of the Court’s basis for deciding the case.
How do you decide enforcement of a provision of the ACA violates the RFRA without, at least implicitly, finding that the ACA did not supersede the RFRA?
From the RFRA statute, 42 USC Section 2000bb-3(b)
Rule of construction
Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.
nt
With the caveat that I don’t follow every case, it seems as though cases involving regular citizens take a lot longer to get to the Court than politically charged stuff like this. Does the Court have some sort of fast track, and if so, why aren’t we simply hiring more clerks (or whatever) to put more cases on that fast track?
The initial appeal was of the denial of a preliminary injunction, only two months after the case was filed, which means the case went up on appeal before completing discovery and other dispositive motions. That sped it up quite a bit.
That said, the 10th Circuit heard it en banc, skipping the 3-judge panel. That suggests a bit of a fast track to Supreme Court. The 10th Circuit decision came perhaps a little faster than usual.
I believe the Alito ruling opened a door he did not expect. He said the government could pay for necessary services if employers won’t. He also stated that the government could extend the same process of obtaining contraception that is offered the non profit religious organizations. If this is so he has inadvertently accepted government’s role in providing payment for health services outside of Medicare and Medicaid. He has provided, albeit a small one, legal basis for a single payer system. By his logic, he understands that employer based health insurance is problematic and possibly detrimental to an individual’s health. It is certainly something to build on.
Don Berwick promotes single payer health insurance, and should point out that the SC concurs even if they culled out just reproductive services. The argument could be broadened to pertain to all services so they can not be decided by the beliefs of an employer. There is more paydirt in advocating this view since a very conservative court seems to indicate this is so, no matter how narrowly they decided the issue. It stands alone. The majority of the SC believes government should be the final common pathway for paying for health insurance.
In some sense the problem with the decision is that it doesn’t take corporate personhood seriously enough. A corporation is a legal person–not a natural person–that can sue and be sued, own property , etc. It is leglY separate from its owners. So I would say it is a mistake to attribute the owners’ religious beliefs to it. If the owners don’t like that, the can do business as partners, though they then would give up some of the benefits of setting up a separate legal person. Life is tough that way.
That’s how I would attack the decision, anyway.
… that might make an effective attack, if for no other reason than to make distinct the law and to clarify the relationship between ‘natural’ persons and ‘legal’ persons.
To the extent, however, that the distinctions are blurred and that the right side of the spectrum has no problem attributing religious belief of the real owners to the fictitious entities, often at the expense of other ‘natural persons’ I think this is deliberate. That corporations are happy to spend increasingly vast sums with dubious and/or diminishing returns demonstrates a wholesale abandonment of predictably amoral capitalism into the waiting arms of the wholly unpredictable immorality of corporatism: power, it is sometimes noted, corrupts…
In my view, the Achilles’ Heel of the corporation-as-person argument is the utter inability of a corporation to feel pain (or anything else). This makes it impossible to effectively discourage anti-social corporate behavior.
The very purpose of a corporation, at its core, is to insulate the owners from the consequences of their actions. If a “tunnel” is to be created that permits the owners, directors, or executives to project their religious beliefs onto the corporate entity, then that tunnel MUST be a two-way street that also exposes those owners, directors, or executives to the direct personal pain that results from the consequences.
It is against the law to discriminate against women in Massachusetts. If the consequences of these “religious” objections included jail time and serious fines for criminal discrimination, then perhaps the behavior might change.