A few things you should read before you make up your mind about Hobby Lobby

I suppose this post is about a week and a half late, given the short attention span of online conversation. So if you find yourself wondering “Why on earth is this guy still talking about a Supreme Court decision from two whole weeks ago,” I totally understand—I, too, have trouble remembering anything that happened before Germany annihilated Brazil on Tuesday.

That said, for the moment it’s actually my full-time job to think about the Hobby Lobby decision, and if you’re still reading this post, you’re probably still thinking about it, too. If that is the case, there are some things I think you should read and ponder before you let your opinion on the case set too firmly.

For a quick summary of the issues in the case, I’d start with this post on SCOTUSblog. If that’s not enough, and you’d like to understand the legal arguments a bit more thoroughly, keep reading.

Hobby Lobby was decided under the Religious Freedom Restoration Act of 1993, generally referred to as RFRA (pronounced “RIFF-ra”). The most important part of RFRA reads as follows:

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Did the Supreme Court apply this law correctly? The controversy over whether they did or did not can mostly be summarized with five questions.

1. Can a for-profit corporation be a “person”?

Some people are outraged by Hobby Lobby because they oppose “corporate personhood,” the legal doctrine that for some purposes, corporations should be treated the same as actual people.

I think this outrage is misplaced. Among lawyers, the notion that corporations are sometimes persons is totally uncontroversial—if corporations weren’t persons for some purposes, they couldn’t own property, make contracts, be sued for hurting people, etc. It’s also totally uncontroversial that corporations are not persons for some other purposes—nobody thinks that corporations have a right to vote, or that causing the death of a corporation is murder.

It’s perfectly rational to worry about wealth and power in our society becoming too concentrated, or about big businesses having too much political influence. (I worry, too.) But the legal fiction of corporate personhood isn’t really the cause of these problems. For more on the idea of corporate personhood, I recommend this interview from back during the Occupy Wall Street protests.

2. Can a for-profit corporation be a “person” who “exercises religion”?

This is a harder question, and it split the Supreme Court. Five Justices said yes, two said no, and two declined to answer.

The majority’s argument that a for-profit corporation can be a person who exercises religion runs something like this:

1. Non-profit corporations like churches exercise religion and have RFRA rights, so a corporation can be a person under RFRA.
2. For-profit companies that aren’t corporations can exercise religion and have RFRA rights, so for-profit companies can “exercise religion” under RFRA.
3. If incorporated non-profits have RFRA rights, and unincorporated for-profits have RFRA rights, then incorporated for-profts have RFRA rights.

The first two steps of this argument are fairly uncontroversial, and the government’s lawyer arguing against Hobby Lobby conceded them both: of course incorporated churches exercise religion, and of course a ban on kosher slaughter would interfere with the religious freedom of Orthodox Jewish butchers. (Which is not a hypothetical problem.)

Obviously, though, not everyone agrees with the conclusion of this argument, though their counterarguments differ. Two examples:

• Justice Ginsburg’s dissent (joined here by Justice Sotomayor) argues that RFRA incorporates Supreme Court precedents from before 1990 that deny free exercise rights to for-profit corporations. (Start reading on page 72 of the PDF.)
• This amicus brief argues that non-profit corporations don’t really have free exercise rights, but rather assert their individual members’ free exercise rights in a way that for-profit corporations can’t. (Start reading on page 10 of the PDF.)

And here are two arguments in favor of the Court’s conclusion:

• Justice Alito’s opinion for the Court. In addition to the argument I summarized above, Alito suggests that Hobby Lobby should be able to assert the religious freedom rights of its owners. (Start reading on page 22 of the PDF.)
• Alan Meese and Nate Oman’s online article for the Harvard Law Review points out that there are lots of for-profit corporations that exercise religion to some degree, and that this is perfectly legal under the laws governing corporations.

And finally, a side note: here’s one brief post noting the irony of liberals insisting that corporations like Hobby Lobby should leave their moral views out of things and just focus on profits:

• Ross Douthat, “A Company Liberals Could Love.”

3. Did the contraception mandate “substantially burden” Hobby Lobby’s exercise of religion?

As with the last two questions, if the answer here had been “no,” Hobby Lobby would have lost the case. The Supreme Court answered the question “yes” based on something like the following reasoning:

1. Hobby Lobby sincerely claimed that providing insurance that covered particular contraceptives would violate its religious beliefs.
2. The mandate ordered Hobby Lobby to provide such insurance, so it was a burden on Hobby Lobby’s exercise of religion.
3. The penalty for violating the mandate would be many millions of dollars, so the burden was substantial.

I suspect it was this line of reasoning that led Justice Ginsburg (joined by three other Justices on this issue instead of just one) to call the majority’s ruling “a decision of startling breadth.” They fear, with good reason, that the majority’s understanding of RFRA’s “substantial burden” requirement means that anytime someone sincerely says they’re substantially burdened, they’re substantially burdened—even if the actual interference with their religious practice appears to be trivial.

For this reason, critics fear that Hobby Lobby opens the doors for a flood of frivolous objections to all sorts of important regulation: environmental protection laws, minimum wage laws, workers’ safety laws, laws for protecting consumers, and—on everyone’s mind throughout the controversy—anti-discrimination laws. But on the other hand, interpreting the substantial burden test any other way seems to require courts to interrogate the religious beliefs behind RFRA claims, which is a highly sensitive and constitutionally dubious inquiry.

Here are two arguments that the burden in this case is substantial:

• The Supreme Court majority’s argument, which begins on page 37 of the PDF.
• This commentary by First Amendment scholar Eugene Volokh.

And two arguments that it isn’t:

• Justice Ginsburg’s dissent. Start reading on page 79 of the PDF.
• This law review article by First Amendment scholar Caroline Mala Corbin, arguing that the independent choice of Hobby Lobby’s employees to use contraception absolves Hobby Lobby of responsibility, so there is no substantial burden. (Start reading on page 157, page 7 of the PDF.)

4. Does the contraception mandate further a compelling government interest?

Legally, this question didn’t matter to the majority’s decision: the majority assumed that ensuring free access to contraceptives was a compelling government interest.

That said, you can’t understand why some people are furious about Hobby Lobby if you don’t understand why they care so much about contraception coverage. First, there’s basic fairness: birth control benefits both women and men, yet for technological reasons it has traditionally been women who paid for it. The contraception mandate spreads the cost to men as well.

But the deeper reason why birth control is such an important issue to Hobby Lobby’s critics is that, as one reads in Justice Ginsburg’s dissent, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Unplanned pregnancies can push women out of the workforce for years or even decades, dealing a huge blow to their ability to advance in their careers and to their lifetime earning potential. To many (like this writer), Hobby Lobby isn’t really about religion but about men trying to control women’s sexuality and fertility and thereby control their careers.

I think that goes light years too far, but it’s not totally baseless. In any case, it isn’t crazy for the critics to imagine that if the Supreme Court cared more about women’s health and equality, the outcome of the case might well have been different.

For further reading on the implications of Hobby Lobby for women’s health, read this article from Kaiser Health News, or this one by Ezra Klein.

5. Is the contraception mandate the least restrictive way to get people free contraception?

This is the final legal question in Hobby Lobby, which the majority answered, “no.” The Court intended to use this part of its opinion to keep the effects of the decision narrow, by tying its “least restrictive means” analysis to unusual facts of the case.

Specifically, because the Obama administration has consistently claimed that contraception coverage is cost-neutral—that is, by preventing pregnancies, it saves as much money as it costs—it has been able to offer a compromise to non-profit religious institutions in which their employees receive free contraception coverage not from their employer but through a separate policy from their insurers. The Court concluded that because this compromise is less burdensome to religious employers than the mandate is, the mandate is not the least restrictive means to achieve free contraception coverage.

The Court emphasizes this point: “The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” Justice Kennedy’s concurrence also puts particular emphasis on this line of reasoning, which is important both because Kennedy is the swing vote in these cases and because his interpretation of the “least restrictive means” test could be used to make Hobby Lobby a very narrow decision.

The dissenters, on the other hand, reject this reasoning, arguing (I think) that the non-profit compromise isn’t less restrictive than the mandate because there’s no guarantee that Hobby Lobby will accept the non-profit compromise. I find this argument unpersuasive; the Court can easily conclude that the non-profit compromise is less restrictive than the mandate even if Hobby Lobby also objects to the non-profit compromise.

In any case, here are three sources supporting the Court’s conclusion on this point:

• The Court’s opinion itself. The “least restrictive means” analysis begins on page 46 of the PDF.
• Justice Kennedy’s short concurrence, beginning on page 56 of the PDF.
• This commentary by constitutional scholars Vikram Amar and Alan Brownstein, arguing that this sort of “least restrictive means” would lead to a narrow decision in Hobby Lobby’s favor.

Here are three sources arguing against:

• Justice Ginsburg’s dissent. The discussion of the “least restrictive means” test starts on page 86 of the PDF.
• Dahlia Lithwick and Sonja West’s article in Slate, arguing that the majority’s “least restrictive means” analysis isn’t narrow after all.
• Law and economics scholar Neil Buchanan also arguing that the Court’s holding is not as narrow as it imagines. (Start reading at “To read Justice Kennedy’s opinion, none of this should worry anyone.”)

And finally, here’s a health economist suggesting that contraception coverage might not be cost-neutral after all, which would complicate the Court’s analysis.

Summary and conclusion

Hobby Lobby won because the Supreme Court thought it was a person who exercised religion, that the contraceptive mandate substantially burdened its exercise of religion, and that there were less restrictive ways to achieve the compelling state interest of free access to contraception. Hobby Lobby’s supporters are mostly happy because the case will protect religious freedom, though Justice Kennedy’s concurrence and the fact-specific nature of the Court’s least-restrictive means analysis leave some doubt about how broad the decision’s protection will be.

None of the Court’s conclusions have avoided criticism. Some people think for-profit corporations can’t exercise religion; some think the substantial burden test should be more demanding; some think that the Court’s efforts to narrow its decision through “least restrictive means” analysis will fail; and probably most of Hobby Lobby’s critics think the Court has seen too much value in an insubstantial religious claim, and not nearly nearly enough in women’s health and equality.

Who’s right? Well, if you’ve made it this far, you’ve probably formed some opinion of that yourself. As for me, hesitantly, I think the Court got the outcome right, but I’m troubled by a few aspects of the majority’s reasoning. If you want to know what they are, well, read my law review article when I finish drafting it in a few weeks. And if you thought this post was long…