The Supreme Court handed down rulings in the last two cases of its term this morning, Harris v Quinn (whether public sector unions could charge fees to non-members) and Burwell v Hobby Lobby, the now-infamous challenge to the ACA’s contraception mandate. In both cases, I think the results are wrong but probably the best we could have hoped for given the court’s current configuration.
Let’s start with Harris (full ruling here). The court ruled that a public sector union could not charge home health care workers what are essentially dues if the workers did not want to join the union. But it’s a very limited ruling, applying only to these particular workers because they aren’t “full-fledged public employees.” Thus it does not affect the overwhelming majority of public sector employees or their unions. As Tom Goldstein put it on ScotusBlog:
“This is a substantial obstacle to expanding public employee unions, but it does not gut them.
It remains possible that in a later case the Court will overturn its prior precedent and forbid requiring public employees to contribute to union bargaining. But today it has refused to go that far. The unions have lost a tool to expand their reach. But they have dodged a major challenge to their very existence.”
Again, given the current configuration of the court, probably as good an outcome as we could have hoped for. Here’s what I’d love to see, though. Currently the law requires that unions negotiate on behalf of all workers, not just the ones who are part of the union. Let’s change that. If the union negotiates a great contract with higher pay and better benefits, if you didn’t support the union in those negotiations, you stay at your old pay rate with the old benefit package. That would end that issue immediately.
The same is true of the Hobby Lobby case (full ruling here). Bearing in mind that I haven’t read the whole thing yet, just some of the majority opinion, here are some initial thoughts. The court ruled that a closely-held corporation like Hobby Lobby (a closely-held corporation is one in which more than 50% of the company is owned by five or fewer people) was covered by the Religious Freedom Restoration Act and that they should be exempted from the contraception mandate of the Affordable Care Act.
But here again the ruling is very limited in several important ways. First, it applies only to closely-held corporations, not to other privately owned for-profit corporations and certainly not to publicly-held corporations. Second, the majority ruling makes very explicit that the ruling does not mean that a company can claim a religious liberty exemption from all kinds of other laws, or even for other forms of health care in their insurance policies, like blood transfusions or vaccinations:
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, which upheld the payment of Social Security taxes despite an employer’s religious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there is no less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate.
Also hopeful is that the majority opinion suggests that one of the alternative ways the government could achieve the same goal, including that they could extend the accommodation given to religious non-profits to religious for-profits as well. That accommodation requires that, when a non-profit corporation certifies that they have a religious objection to providing coverage for birth control in their group policy, the insurance company must provide such coverage at no cost in a rider for each individual employee. The court said that the government could extend that accommodation to closely-held for-profit corporations as well. Why is that hopeful? Scotus Blog again explains:
“The majority opinion, by holding that the nonprofit accommodation is a less restrictive means for accommodating closely held for-profit business suggests (at least to me) that the non-profits who object to that process (because they don’t want to have to certify that they object to providing contraceptive coverage) are in trouble. Seems unlikely the Court would say that this is a less restrictive means in this case, only to later hold that it is unconstitutional.”
Right. Which means that those dozens of cases now pending in the courts from non-profits claiming that this accommodation scheme is a violation of their religious freedom are very likely to lose those cases. The court is saying that there are less restrictive means of achieving the same interest in making contraception widely available, including extending the non-profit accommodation to closely held for-profit corporations as well. It would be quite odd for them to suggest that as a constitutional means of achieving that goal and then turn around and say that means is unconstitutional a few months later.
So it’s not a good day, but it could have been a far, far worse day. I would have preferred a ruling that said RFRA doesn’t apply. Hell, I would have preferred a ruling that struck down RFRA completely, but that was never going to happen. I was hoping for a ruling that said the contraception mandate was not a significant burden on religious liberty, but knew that was unlikely. As bad as it is, this is almost certainly as good an outcome as we could have hoped for under the circumstances.