Getting the Law Wrong: The Supreme Court in Burwell v. Hobby Lobby

On June 30th the Supreme Court ruled in favor of Hobby Lobby in the case Burwell v. Hobby Lobby. The ruling will no doubt go into the textbooks as a new, reformed understanding in the relationship between corporations and religious freedom. With all due respect, I find their decision bewildering for its logical incoherency. It is my intention in this article to deliver a convincing and honest critique safely within the relevant legal framework. This is an argument based on the facts of American law, not on personal opinion or ambiguous, overarching moral principles.

To keep my analysis pure, I have not read any media about the decision besides the Supreme Court’s official and binding 95 page released opinion. Mainstream media has a habit of misconstruing Supreme Court decisions, and I for one do not wish to be tainted. Perhaps in the future I will analyze the media’s interpretations of the decision. But for now, all the information necessary about the case can be found in the Supreme Court’s document, if only one spends the time to read it. I hope to be lucid and transparent. I hope to reflect the Court’s decision precisely as it was and then to give an honest criticism using the dissent’s guidance whenever possible. I hope that this article does just that.

Before continuing, we need to know the gist of the case. Below is the exact wording of the Court’s syllabus that explains the issue, which “constitutes no part of the opinion of the Court” (1). This is from the actual document, and not from a journalist middle man. I have edits of my own added for clarity and brevity that are all in red. To find the whole syllabus, I invite you to read the document itself. It reads:

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling govern-mental interest; and (2) is the least restrictive means of furthering that compelling Governmental interest.”(my emphasis)… RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” At issue here are regulations promulgated by the Department of Health and Human Services (HHS) under the Affordable Care Act of 2010 (ACA, “Obamacare”), which … requires specified employers’ group health plans to furnish “preventive care and screenings” for women without “any cost sharing requirements,” Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost-sharing requirements on the employer, its insurance plan, or its employee beneficiaries.

In these cases, the owners of three closely held for-profit corporations (Conestoga Wood Specialties, Mardel, and Hobby Lobby Stores) have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices … they sued HHS and other federal officials and agencies … under RFRA and the Free Exercise Clause [of the First Amendment] (“Congress shall make no law…prohibiting the free exercise [of religion]”), seeking to enjoin application of the contraceptive mandate [except where it] requires them to provide health coverage for the four objectionable contraceptives … [The Tenth Circuit] held that the Greens’ businesses are “persons” under RFRA, and that … the contraceptive mandate substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling Governmental interest.

That context should be sufficient for the reader, but if you need more information I implore you to read the entire syllabus. Let us move on to the Court’s decision. When I refer to “the Court”, I am referencing the official opinion delivered by a majority vote (5 to 4) of the Supreme Court. “The dissent” is the four Supreme Court justices who disagreed with the majority vote. The majority of 5 published the official opinion of “the Court”, which under American law is considered Constitutionally binding. The minority of 4 published their official “dissent”, which serves to clears the conscious of the dissenters as to why their colleagues were wrong and make for interesting discussion among the public. The dissent has no legal authority of its own, and it important to note that legally, the majority is always right. Their beliefs are now law. However, since we know the Supreme Court is right, it can be helpful to think about whether or not they should be.

The Court ruled in favor of the three corporations that I will collectively refer to as “Hobby Lobby”. They did so for several reasons that by and large are based not on the First Amendment (which is more limiting) but off of The Religious Freedom Restoration Act of 1993 (RFRA), mentioned in the beginning of the syllabus. The reasons are as follows:

  1. Corporations are by definition the same as people : “Under the Dictionary Act, “the word ‘person’…include[s] corporations…as well as individuals,”” (19). Since they are the same as people, corporations are entitled to follow practices in accordance with their religious beliefs and conversely to not follow practices that are not in accordance.
  2. Mandating corporations to provide contraceptives they find morally wrong is a substantial burden against them. Should the corporations refuse to cover the contraceptives, “the economic consequences would be severe” (32). “For Hobby Lobby, the bill could amount to…about $475 million per year…these sums are surely substantial” (32). Furthermore, requiring Hobby Lobby to be complicit in what they see as a morally reprehensible act is also a substantial burden.
  3. Assuming that contraceptive access is a compelling Government interest, the ACA’s mandate is still not the least restrictive means. Though corporations may have religious beliefs and the mandate would be a substantial burden, the Government may still require it of them if it was “the least restrictive means of furthering[a] compelling Governmental interest” (1) according to RFRA. However, the Government can provide exemptions as it does for non-profit religious groups such as churches. Under this exemption, the Government would assume the cost sharing for the contraceptive access, not the corporation, and it would be a more restrictive means.

At first glance, the Court does make convincing points. Corporations are legally considered as people, and should they then have the same religious rights as people? Even if corporations are not people themselves, can owners restrictively practice their religion through their business? After all, “it is not at all uncommon for … corporations to further humanitarian and other altruistic objectives” (23) via charitable causes. Non-profit entities can have religious rights; should for-profit entities be treated the same?

The answer is a resounding no. Justice Ginsburg, in his dissent, quotes two rulings from the past to make his point concerning the Court’s reason #1. The George Washington of the Supreme Court, Chief Justice John Marshall, observed two centuries ago that “a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law”” (73). Justice Stevens wrote in the recent Citizens United decision that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires” (73). The court refers to The Dictionary Act to equate corporations to people, but the act itself provides exception where the “context” would “indicat[e] otherwise” (73)! The Court conveniently ignores the possibility of such a context, but the dissent makes note of it. Here, in the context of religious exercise, corporations simply cannot be people.

While corporations may engage in charity work, may follow the religious beliefs of their owners, and may participate in humanitarian objectives, at the end of the day their goal is wholly and entirely to make profit for shareholders. For that reason, corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires” (73). And for that reason, corporations cannot exercise religious beliefs. The Court insists that since corporations can do humanitarian things, they can also do religious things. That a corporation chooses to is commendable, but we must assume it is for profit! Corporations act to receive profit for their shareholders, and charity work can contribute to a better public image for the purpose of profit.

The Court rebuts that the 1993 Congress meant for the RFRA to include corporations. Without getting into technicalities, the dissent makes it clear that Congress made no such intention. Corporations have never been thought of as entities with religious or personal beliefs, as when owners decide to form corporations, they are willingly divorcing themselves from their business. The owner and the corporation are not one and the same.

Even so, the Court would have us believe that the owner’s religious beliefs are relevant to their corporation. But this would “put the personal opinion of employers and insurers over the practice of medicine” (65). Even worse, “it would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage” (67). Personal beliefs of an employer should not impose themselves on an employee when it has little to do with public good. It is important to understand that as far as the Court can be concerned, the employers have “sincere Christian beliefs that life begins at conception” (2). It is not their business to decide what beliefs are sincere or not, and what beliefs are correct or not. Even if correct and sincere however, what right does an employer have to impose those beliefs on their underlings in a profit making industry? Employees are selected for their contributions to profit, not their conformity to their employer’s norms. Corporations are for profit.

The dissent exercises a three tier criticism against the line of reasoning I provided for the Court. While I agree fully with their first criticism of reason #1 (which I summarized and interpreted above), the dissent falters on reason #2 and I find the Court within reason here. I do not buy the dissent’s (and mainstream liberal) argument that providing contraceptive access is no big deal. The dissent would have us believe that Hobby Lobby, should it be treated as an entity with religious beliefs (and, to be clear, it should not), would not be substantially burdened for following the Government mandate. The dissent contends that providing contraceptive access is incomparable to using contraceptives oneself. Justice Ginsburg, writing for the dissent, quotes Grote v. Sebelius: ““[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employer’s] decision or action”(82) . But unfortunately, it is her employer’s business. That contraception, infection, or hip replacement is on her employer’s dollar.

Make note that the contraception would be cost shared by the employer. For some, contraceptive use after egg fertilization is akin to murder. Would, in that circumstance, providing access to murder be different from murdering itself? Is knowingly allowing a crime – and providing the means for it – different from committing a crime?  In American law, this is known as complicity, and it is illegal. There is an internal contradiction in the dissent’s opinion. Here, the majority is correct. Hobby Lobby is substantially burdened for being required to allow an action its owners see as morally reprehensible.

Even so, there is an important cost burden against Hobby Lobby. Should the corporation refuse to cover the contraceptives, “the economic consequences would be severe” (32). “For Hobby Lobby, the bill could amount to…about $475 million per year…these sums are surely substantial” (32). The dissent does not mention the fiscal burden once in Justice Ginsburg’s opinion. We must assume that they tacitly acquiesce to the majority here. Yet reason #2, despite its internal legitimacy, rests on the premise that Hobby Lobby could have religious beliefs and morality of its own.

Seeing as it cannot, reason #2 becomes irrelevant. Let us move to reason #3 of the majority. Here, the Court reasons that an alternative to requiring Hobby Lobby to cost share contraceptive purchases with its employees is to make the Government pick up the tab. After all, the Government does so for non-profits. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections” (41). In other words, let the Government pay.

But to what end? What if a corporation had religious views that forbid it from providing any Western medical care, or insurance based on usury, or vaccinations access? The least restrictive means, according to the Court, would be for the Government to pick up the tab, always! The Court recognized the danger of their decision, and fortunately ruled out any analogies. The syllabus clarifies that “this decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage man-dates, e.g.,for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs” (6).

But why? Neither the syllabus nor the Court’s opinion explains the difference between other issues and this one. Perhaps it is because there isn’t one. The reasoning of the Court would be invalid if we can prove the speciousness of their argument should analogy be used, despite the fact that the Court rejects analogy entirely. In almost any conceivable circumstance, crafty problem solvers could find a way for Government to accommodate for corporations with the people’s tax dollars. The limited scope the Court offers renders RFRA’s least restrictive means principle almost useless. If almost any infringement can be absolved through Government dollars, then there is hardly anything a corporation cannot get away with on religious grounds at all. In attempting to preserve RFRA’s intentions, the Court has interpreted it in a way that would decapitate it. Thankfully (yet erroneously), they rule out the possibility of analogy, no matter how rational it would be to use it.

Even within a strict legal framework, the Supreme Court fails to properly size up the Religious Freedom and Restoration Act. Its first reason for the ruling deals with the idea that corporations are legally akin to people, and therefore have religious rights the same as people. This idea fails when considering context, in which personal beliefs cannot equate to institutional principles in a profit making industry.

The Court’s second reason, however, is sound, in that the ACA mandate for contraceptive access is a substantial burden to the employer. Here the dissent is inconsiderate of religious beliefs in an intrusive way that is for another article to explain. There would also be a significant monetary cost that would amount to substantial burden. That aside, the second reason depends on the first reason, which falls flat on its face. So it makes of no use to discuss the second reason.

The third reason of the Court’s decision is that the Government can pick up a corporation’s tab as a least restrictive means. They would have the Government (also known as the public) pay the corporation’s bill. Effectively, almost all religious rights cases concerning corporations in the future could be dealt with in this way, rendering RFRA totally ineffective. Although the Court ruled out such possibility, they provide no reasoning for doing so. Since I assume RFRA was written with the intention of it being effective and the Court hasn’t taken sufficient time to defend their own argument, the third reason is wholly unpersuasive.

The Supreme Court’s ruling on Hobby Lobby is incredibly wrong. Its implications are serious and are the concern of another article. For now, know this: the Court makes a case that is logically queer (corporations can have religion) and inconsiderate to American law (The Religious Freedom Restoration Act). The Court has failed the American people in interpreting the law reasonably and correctly. It is astonishing that the most precious institution of our judicial system, the guardian of our Constitution, could blunder so simply.

Sardonically, let us pray for the Republic.

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