Getting It Wrong on the Hobby Lobby Case

Harold Meyerson has a column in the Washington Post about the Hobby Lobby case, which the Supreme Court recently agreed to hear, but I think he should have consulted with a constitutional law attorney or professor before writing at least one passage in it:

The Supreme Court has not frequently ruled that religious belief creates an exemption from following the law. On the contrary, in a 1990 majority opinion, Justice Antonin Scalia wrote that Native Americans fired for smoking peyote as part of a religious ceremony had no right to reinstatement. It “would be courting anarchy,” Scalia wrote in Employment Division v. Smith, to allow them to violate the law just because they were “religious objectors” to it. “An individual’s religious beliefs,” he continued, cannot “excuse him from compliance with an otherwise valid law.”

It will be interesting to see whether Scalia still believes that now that he’s being confronted with a case where the religious beliefs in question may be closer to his own.

But this elides a very important aspect that, perhaps, Meyerson is entirely unaware of. The court’s ruling in Employment Division v Smith prompted Congress to pass the Religious Freedom Restoration Act in 1993, which does, in fact, grant religious exemptions from many generally applicable laws. Justice Scalia’s ruling in Smith only dealt with what was required or allowed by the Free Exercise Clause, not what is required or allowed by federal statutory law, which has changed since that ruling. So if Justice Scalia were to write another ruling in the Hobby Lobby case saying that RFRA does require such an exemption, it would not contradict with his ruling in Smith. It would be entirely consistent.

The real question in the case, which Meyerson does state more or less correctly, is whether corporations are covered by RFRA or not. RFRA says that the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” So the question, as in Citizens United, is whether a corporation is a person, this time under the Free Exercise Clause rather than the Free Speech Clause. The 10th Circuit Court of Appeals in this case said:

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.”

That may be true, of course, but the question really is whether the RFRA specifically would have considered corporations people, not whether the Free Exercise Clause would require it. And that really turns on the legislative history of that law.

Follow Us!
POPULAR AT PATHEOS Nonreligious
What Are Your Thoughts?leave a comment
  • https://www.facebook.com/charlie.crumling Charlie Crumling

    The scary part is if employers can exclude, say, birth control, on the basis of religious objection, would they be able to exclude ALL medical intervention on the basis of faith-healing?

  • D. C. Sessions

    Of course, the other question is whether the RFRA trumps the PPACA.

    Personally, I’m expecting the Roberts Court to hand corporations the power to enforce Sharia on their employees.

  • Artor

    Also; smoking peyote? Gah!!! I don’t know what that would do to you, but it wouldn’t be good. Try eating it, or drinking the peyote tea instead.

  • sqlrob

    Charlie @1:

    Yes, and that’s pretty much going to have to be the outcome if it’s ruled they can do this, otherwise you start getting into the sticky bit of government defining what is a a religion and what isn’t.

  • drr1

    RFRA does control when a federal law (here, the ACA) is claimed to impair free exercise rights. Note, incidentally, that the same isn’t true if a state law is involved. In City of Boerne v. Flores, the Supreme Court ruled that RFRA was unconstitutional as applied to the states.

    So how does Hobby Lobby play out? Depends on whether the Court wants to uphold this part of the ACA or not. The route to upholding it is much easier. The Court doesn’t even have to decide if corporations are persons for free exercise purposes. It can just conclude – correctly – that the ACA does not put any substantial burden on any free exercise rights. In that event, the standard becomes whether the ACA provision rationally relates to some legitimate government interest. The law will survive this constitutional review.

    But if the Court wants to strike the law, the road is much more difficult to travel. It must first find that corporations are persons for free exercise purposes (under RFRA, the free exercise clause, or both). While there is an argument that “religious personhood” here follows from “political personhood” under Citizens United, that argument is very weak. The better argument is that the former need not, and does not, follow from the latter. Only after this personhood hurdle is crossed do we get to the substance of the issue: whether the ACA impermissibly infringes upon free exercise rights. A Court that finds corporate religious personhood will have no trouble concluding that the ACA does substantially burden free exercise. The argument here is even worse than the argument for religious personhood, but if we get to this point, I think the result is inevitable.

    Any time this Court takes up a case involving reproductive rights or women’s health, my first reaction is “uh oh.” And that is true here. I am not confident that the Court will do the right thing here and uphold the ACA. Had it been inclined to do that, it could have done what’s known as a GVR – grant certiorari, vacate the 10th Circuit decision, and remand for reconsideration in light of the Court’s existing precedents. Clearly, the Court has something it wants to say. I might be pleasantly surprised; the Court might put an end to all this ACA free exercise nonsense. But I’m not putting any money on it.

  • Henrietta Swan

    Perhaps DC Sessions is on to something in comment #2.

    We should find a high profile US-based Muslim group to file a brief in support of Hobby Lobby, saying that Muslim owned businesses should have the right to impose Sharia law upon their employees. And then let’s get Hobby Lobby == Sharia all over the press.

    Conservative Christian heads explode.

  • gshelley

    So if employment division v Smith came up today, Scalia would likely find the religious freedom restoration act gives someone the right to smoke peyote?

  • zmidponk

    Little bit off-topic, but I did hear somewhere the point being made that Hobby Lobby was suing so that they wouldn’t support abortion via health insurance, but a large percentage of their inventory comes from China – where women who get pregnant without a permit are forced to have an abortion by the government.

  • http://motherwell.livejournal.com/ Raging Bee

    The court’s ruling in Employment Division v Smith prompted Congress to pass the Religious Freedom Restoration Act in 1993, which does, in fact, grant religious exemptions from many generally applicable laws.

    So the next question is, when is someone going to challenge the constitutionality of the RFRA? Granting people a right to ignore certain laws due to their religious beliefs smacks of establishment of religion…not to mention titles of nobility.

  • gwangung

    “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.”

    I’ll buy that argument when I see a corporation sitting in a pew and getting baptized.

  • http://ahcuah.wordpress.com/ ahcuah

    Well, of course a corporation has religious rights. The Supreme Court accepted that in Gonzales v. O Centro Espírita Beneficente União do Vegetal. Or maybe I should say some corporations have religious rights, because in that case the corporation was a church. I can see how an incorporated church, incorporated with common religious beliefs (and non-profit) might have a religious right under the RFRA, since all those part of the corporation of that church would hold those beliefs. However, Hobby Lobby is not a non-profit. Its incorporation has nothing to do with religion, and it is operating in the public sphere. And it has a lot of control over people who do NOT hold their religious beliefs.

    I think that will make any ruling quite a bit trickier than it first appears.

  • eric

    @1 – no, the scary thing is that, if SCOTUS finds that corporations have religious rights that trump employee rights, then we are basically going back to a pre-1925 interpretation of the Constitution in which your individual freedoms are only protected from (encroachment by) a limited field of government actors, and are not generally protected (and it being up to the government to demonstrate why they must restrict them).

    Pre-incorporation: the Feds must obey the Bill of Rights, but the States don’t have to. They can enforce christianity or whatever.

    Post-incorporation: everyone must obey the Bill of Rights.

    Post-Hobby Lobby??? the government must obey the Bill of Rights, but corporations don’t have to when doing so conflicts with their religion. They can enforce christianity or whatever.

    IMO that would be a very bad ruling.

    @8 – Not a real issue. Religious belief being what it is, nobody expects or demands that someone’s religion be rigorously consistent, rational, or non-hypocritical. If you buy into the notion that Hobby Lobby Inc. can “have a religion,” then you pretty much have to buy into the notion that Hobby Lobby’s religion might restrict what it’s direct employees do but not what its trading partners do. After all, we don’t expect individual religious belief to be that consistent, so how could we expect a corporate religious belief to be any better?

  • http://www.pandasthumb.org Area Man

    The Court doesn’t even have to decide if corporations are persons for free exercise purposes. It can just conclude – correctly – that the ACA does not put any substantial burden on any free exercise rights.

    This is what gets me. How “free exercise” of religion means that a corporation can deny contraceptive coverage to employees through third party insurance. For starters, those benefits are part of the employees’ compensation and should be regarded as a matter of their exercise of conscience, not the corporation’s. But more importantly, if a company can deny other people contraceptive coverage as part of its free exercise, then what in the world could possibly be excluded? Could they claim that their religious freedom allows them not to hire black people? That they can require their employees to go to church? To a specific church? I really don’t see why not.

  • http://www.facebook.com/profile.php?id=153100784 Michael Brew

    Hobby Lobby’s argument still sounds to me like the beginning of an argument to not have to pay taxes at all due to religious beliefs. Because, you know, their tax money might go toward abortions and feeding the poor, which is all against their religion, apparently.

  • colnago80

    Re Raging Bee @ #9

    A good point. Unfortunately, the chances of the current SCOTUS declaring the act unconstitutional are slim and none and slim is on the bus headed out of town.

  • D. C. Sessions

    But if the Court wants to strike the law, the road is much more difficult to travel.

    Would it be as difficult as the majority’s finding in Shelby County?

    Frankly, where this Court is concerned I’m afraid that the most important rule is, “where there’s a will, there’s a way.”

  • drr1

    ahcuah @ 11 said:

    Well, of course a corporation has religious rights. The Supreme Court accepted that in Gonzales v. O Centro Espírita Beneficente União do Vegetal.

    The Court didn’t say that in O Centro Espirita. It wasn’t even an issue in the case. At the district court level, the United States conceded that plaintiffs had made out prima facie free exercise and RFRA claims. So the Supreme Court didn’t go there.

  • paulg

    So, in determining what practices will tarnish the corporation’s soul, is it the CEO’s or business owner’s values that will be adhered to? Maybe corporations will now need a CRO (Chief Religion Officer). Or maybe a board of directors will vote to determine what constitutes a sin (majority rule, or maybe 2/3 just to be safe)? If a business has both Christian and Muslim partners, isn’t the corporation going to hell by default?

    Sometimes I have nothing but contempt for the law.

  • http://ahcuah.wordpress.com/ ahcuah

    @17: Quoting from the 10th Circuit decision in Hobby Lobby:

    In addition, the Supreme Court has affirmed the RFRA rights of corporate claimants, notwithstanding the claimants’ decision to use the corporate form. See O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 973 (10th Cir. 2004) (en banc) (affirming a RFRA claim brought by “a New Mexico corporation on its own behalf”), aff’d, 546 U.S. 418 (2006).

    If they didn’t have standing, that would have come up.

    Also see Gilardi v HHS in the DC Circuit,

    That is not to say the [Supreme] Court views organizations as constitutional outliers—indeed, its jurisprudence reflects the foundational principle that religious bodies—representing a communion of faith and a community of believers—are entitled to the shield of the Free Exercise Clause. The Court has heard free-exercise challenges from religious entities and religious organizations. See Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 381 (1990); Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 330 (1987); Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 292 (1985); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 107–08 (1952). It has listened to the grievances of religious sects and member congregations. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 699 (2012); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 425 (2006); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524 (1993). It has even entertained claims by religious and educational institutions. See Bob Jones Univ. v. United States, 461 U.S. 574, 579–80 (1983).

    Beyond these cases involving religious organizations, however, we glean nothing from the Court’s jurisprudence that suggests other entities may raise a free-exercise challenge. But that the Court has never seriously considered such a claim by a secular corporation or other organizational entity is not to say it never will. For the nonce, only one aberrational case comes to mind. In Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., 366 U.S. 617 (1961), a corporation operated by members of the Orthodox Jewish faith challenged the constitutionality of Massachusetts’ Sunday closing laws. See id. at 618. The Court summarily disposed of the corporation’s free-exercise claim, tersely noting that Braunfeld v. Brown, 366 U.S. 599 (1961), obviated the need for further discussion. See Crown Kosher, 366 U.S. at 631. Technically speaking, the Court did rule on the merits of the case. But it remained dubitante about standing—perhaps the novelty of a secular corporation bringing a free-exercise challenge was too novel.

    Or, AutoCam v. Sibelius, in the 6th Circuit:

    We recognize that many religious groups organized under the corporate form have made successful Free Exercise Clause or RFRA claims, and our decision today does not question those decisions. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (plaintiff was “a not-for-profit corporation organized under Florida law”); O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (affirming RFRA claim by a New Mexico nonprofit corporation), aff’d, 546 U.S. 418 (2006). Furthermore, we acknowledge that our No. 12-2673 Autocam Corp., et al.v. Sebelius, et al. sister circuits have held that on very rare occasions, a “corporate entit[y] which [is] organized expressly to pursue religious ends . . . may have cognizable religious liberties independent of the people who animate them, even if they are profit seeking.” Grote, 708 F.3d at 856 (Rovner, J., dissenting); see also Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012) (granting a preliminary injunction on the basis of RFRA to a for-profit Christian bookseller that was closely held by a non-profit religious entity and several trusts, all of which were organized around the same religious beliefs). But we need not “draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion.” Conestoga, 2013 WL 3845365, at *5.

    Religious rights of certain corporations have been recognized quite a bit.

  • drr1

    ahcuah@19:

    Quoting from the 10th Circuit decision in Hobby Lobby:

    In addition, the Supreme Court has affirmed the RFRA rights of corporate claimants, notwithstanding the claimants’ decision to use the corporate form. See O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 973 (10th Cir. 2004) (en banc) (affirming a RFRA claim brought by “a New Mexico corporation on its own behalf”), aff’d, 546 U.S. 418 (2006).

    If they didn’t have standing, that would have come up.

    That’s the 10th Circuit in Hobby Lobby citing itself in the O Centro Espirita case. The Supreme Court didn’t say any of that in its O Centro Espirita opinion. It affirmed the 10th Circuit on RFRA strict scrutiny grounds without ever taking up the issue of corporate free exercise.

    The cites to Autocam and Gilardi stand for the well-established idea that “religious organizations” or “religious bodies” have free exercise rights, as do individuals. Not sure what that has to do with my first response to you. I said nothing about that because your first post said that religious organizations can have free exercise rights, which is clearly so. Am I missing something?

  • http://ahcuah.wordpress.com/ ahcuah

    drr1@20. First, yes, silly me on my quote from the 10th Circuit. However, even though the Supreme Court there only addressed the compelling interest standard, standing is one of those things that courts can bring up sua sponte. It hardly seems likely that the Supreme Court would have taken the case if they thought it at all possible that the church there didn’t have standing because they were a corporation.

    As regards to missing something, maybe we’re talking at cross-purposes. The whole point of Ed’s post was whether “corporations” had religious rights. And my point was that there are plenty of cases in which corporations clearly have religious rights. To properly phrase the question requires specifying that the issue is whether for-profit corporations have religious rights (which I think quite doubtful). One could even ask whether certain non-profits have religious rights (does Planned Parenthood?). I would think that the only time a corporation can have a religious right is when it is specifically set up to specify that religious right (i.e., be a church). I’m just asking for precision in the discussion of the issue.

  • drr1

    Yes, I’m vaguely familiar with standing. There were other plaintiffs in O Centro Espirita, so whether the religious order had standing wasn’t an issue.

  • http://ahcuah.wordpress.com/ ahcuah

    ddr1@22. I guess I just don’t understand what your beef is. I said that the SC “accepted” O Centro as a corporation with religious rights. I didn’t say they ruled it, or that it was central to the case, or anything else, just that they accepted them. Then my other cites showed that they have done so in plenty of other cases, when those corporations were churches. That’s it. So why do you keep poking?

  • neonsequitur

    I’m just wondering; if the Supreme Court declares that corporations have more rights than people, or that the rights of corporations trump those of actual people, would it be possible for me to legally become a corporation so I’m covered both ways?