National Review Makes Terrible Arguments on Hobby Lobby Case

Even Birnick, a visiting legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, might want to ask for a refund on his legal education judging by the arguments he makes in an article at the National Review about the Hobby Lobby case.

The First Amendment to the Constitution stands as a bulwark against this sort of coercion. In Employment Division v. Smith (1990), the Supreme Court held that the First Amendment allows the government to pass “neutral, generally applicable” laws that impose substantial burdens on religious exercise. But in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), the court clarified that a law is not “generally applicable” if it regulates religiously motivated conduct while leaving similar, secular conduct unregulated.

Notably, that second case concerned a corporation. Never in its jurisprudence on free exercise of religion has the Supreme Court treated organizational persons differently from individuals.

Um. No. The Church of Lukumi Babalu Aye was not a corporation in the sense that Hobby Lobby is (the fact that it begins with “church” might have tipped him off. In fact, the ruling itself explicitly says, “Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a not for profit corporation organized under Florida law in 1973.” Hobby Lobby is a for-profit corporation. Those things are treated differently under the Affordable Care Act.

And that last sentence is very slippery. The term “organizational persons” is very misleading. Religious non-profits, like churches, are of course covered under the Free Exercise clause. That’s why churches do not have to comply with anti-discrimination laws, for example, when those laws do apply to all for-profit corporations. There is a big distinction legally between religious non-profits and for-profit corporations that happen to be owned by religious people. The former is exempted from a wide range of laws precisely because of the Free Exercise clause, but the former are not (though they are not entirely uncovered by it; Eugene Volokh has an excellent and thorough discussion of the question of corporate personhood in regard to the Free Exercise Clause here).

Volokh found one case from 1961 where a corporation asserted a Free Exercise Clause right, but the court resolved the matter on different grounds and did not rule on the subject. But he also correctly points out that there are situations in which a for-profit corporation could assert such a right and even those who think Hobby Lobby has no grounds for this suit might well agree. For instance, if there was a law requiring that all convenience stores sell lottery tickets most people, and the courts, would likely agree that this would violate the religious freedom of a store owner whose religion forbid him from doing so. The question is, how different is that from this case?

I think the answer really lies in the question of whether the contraception mandate constitutes a “substantial burden.” Forcing a company to sell a product that violates their religious beliefs is quite different from the ACA mandate, which does not require companies to include contraception in their group insurance plans but only requires insurance companies to provide a rider to their employees.

Smith doesn’t support the HHS mandate. The mandate isn’t “generally applicable” by any stretch of the imagination. Obamacare provides that millions of large and small secular employers will not have to cover “preventive services” if they provided their employees with “grandfathered” job-based plans that existed on March 23, 2010, and have covered at least one person continuously from that day forward.

Seriously, if he made this argument in a con law class he’d receive a failing grade. For a law to be “generally applicable” does not require that every single person or entity be covered in exactly the same way, it requires that those who are “similarly situated” be treated equally. And the only relevant definition of “generally applicable” to this case is whether it covers both religious and non-religious entities in the same manner, which it does. All companies owned by non-religious individuals and all companies owned by religious individuals are covered equally — if they don’t have a grandfathered plan, they have to comply with the contraception mandate.

Federal law, too, protects the religious liberty of Hobby Lobby. The Religious Freedom Restoration Act provides that the federal government may substantially burden the exercise of religion only if it “demonstrates that application of the burden to the person (1) is in furtherance of a compelling government interest and (2) is the least restrictive means of furthering that compelling interest.”

RFRA’s text and history reflect that Congress intended the statute to protect the same persons as does the free-exercise clause of the First Amendment — including corporate persons.

Okay, then please point to where in the text of RFRA it says that it applies to for-profit corporations. The text says “persons,” not corporations. It also says that the purpose of the law was “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).” Neither of those cases involved a corporation asserting a free exercise claim.

But as I said above, the real key question here is whether the contraception mandate constitutes a “substantial burden” on the free exercise rights of the company’s owners. And I think it quite clearly is not. And even if it was, you have a countervailing right of individuals to have contraception coverage. This situation is quite unlike the hypothetical of a convenience store not selling lottery tickets because, while a person can just go to another store to get their lottery tickets, they can’t just saunter down the street and get another job with health insurance.

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  • mikeym

    There’s a Center for Judicial and Legal Studies named after Ed “If a person is innocent of a crime, then he is not a suspect” Meese? Is it located near the W.C. Fields Center for Sobriety?

  • “Lukumi Babalu Aye”

    Wasn’t that one of the songs that Lili von Shtupp sang in Blazing Saddles?

  • The toughest part about the Free Exercise clause is getting my employees to follow my religious beliefs.

    If the government isn’t going to Establish my beliefs on those under me, then what’s it for?

  • National Review

    National Front (UK)

    British National Party

    National Socialist

    National Party (NZ)

    Front National du France

    National Right to Life Committee

    National Organization of Marriage

    Is there a reason that extreme right wing groups and organizations like that word? Or are they just trying to demonstrate solidarity and agreement with each other?

  • Andrew G.

    Is there a reason that extreme right wing groups and organizations like that word?

    Of course there is; in-group loyalty, of which nationalism is a major manifestation, is one of those values strongly correlated with right-wing belief.

  • Andrew G.

    I don’t buy the lottery tickets example. Here’s why: someone who has a non-religious objection to selling them ought to have just as good a case as someone with a religious objection, so it ought not to be a “free-exercise” issue at all.

  • skinnercitycyclist


    National Organization for Women?

    Sometimes a cigar is just a cigar, I suppose…

  • tsig

    If someone wants their organization to reflect their religious beliefs they should form a church not a company.

    Hobby Lobby is trying to serve god and Mammon.

  • @8:

    Not really. Hobby Lobby is using his humility and holiness to excuse fucking the employees over on the six days that aren’t Sunday. I wouldn’t go in that fucking chain if they were GIVING stuff away.

  • jeevmon

    “while a person can just go to another store to get their lottery tickets, they can’t just saunter down the street and get another job with health insurance.”

    Frequently, you will hear conservatives suggest just that, not just with contraception, but with all employment laws. Their view is that that if you don’t like your conditions of employment, your only remedy is to find another job.

  • lofgren

    It seems as though his argument, at least in part, is that because there is a clause covering grandfathered plans, companies without grandfather plans should also be allowed to take advantage of the clause. In’t that sort of like arguing that because we have self defense laws, people who kill not in self defense should also be allowed to take advantage of those laws? The whole point of the grandfather clause is to make exceptions for a specifix group of people who meet specific criteria. If you throw out the criteria, you basically make healthcare optional.