Tag Archives: Contraception Mandate

A Pretty Narrow Decision

That’s my first read on today’s opinion in the Hobby Lobby case: narrow and pretty much as expected. Indeed, Justice Alito’s opinion for the Court says as much (“our holding is very specific”). It’s a 5-4 decision; a 5-2 decision on one important point. Still, a win’s a win, and Hobby Lobby, its lawyers, and those who filed amicus briefs in its behalf have a right to be pleased–as do all those who value religious freedom.

Some first impressions:

  • The Court does not address Hobby Lobby’s First Amendment claims; Hobby Lobby wins on RFRA grounds. No surprise there.
  • In holding that a for-profit corporation can exercise a religion for RFRA purposes, the Court takes the route that Chief Justice Roberts suggested at oral argument. It expressly limits its holding to closely-held corporations like Hobby Lobby and declines to discuss whether large, publicly traded corporations also can exercise a religion for RFRA purposes. That, as lawyers say, is a question for another day. (Self-promotion alert: this is what I predicted). The vote was 5-2 here; two dissenters, Justices Breyer and Kagan, would not have reached the issue.
  • The Court makes clear its ruling does not mean it will necessarily rule the same way in other cases where employers seek relief under RFRA, for example, where employers object to covering immunizations. Different governmental interests could be involved in those cases, the Court says.
  • The Court goes out of its way to say that its holding would not allow employers to justify racial discrimination on religious grounds. It says nothing about other sorts of discrimination, however. Surely this is intentional. As everyone knows, a major lurking issue is whether RFRA allows employers to discriminate on the basis of sexuality, especially homosexuality. The Court obviously wishes to avoid any allusions to that issue–perhaps to keep Justice Kennedy on board. The dissent does raise the issue, though.
  • The qualifications in the Court’s opinion are obviously meant to answer the dissent’s “parade of horribles.” Seems a pretty good answer to me–but the dissenters are not impressed. The Court’s logic extends to publicly traded corporations, Justice Ginsburg writes, and there is little doubt, notwithstanding the Court’s reassurances,  that RFRA claims will “proliferate” in future. In particular, the dissent raises the issue of religiously-based objections to sexuality. As I say, the Court studiously avoids that issue.
  • In its least-restrictive means analysis, the Court notes that an accommodation of the sort the government has offered to certain religious non-profits would have achieved the government’s end in this case as well, and would have imposed less on Hobby Lobby’s religious exercise. That is, an alternative to the mandate is available. Is the Court hinting at what it thinks about the Little Sisters of the Poor case? I don’t think so; the Court went out of its way to reserve that issue. But the language here is a bit opaque and may cause trouble in future.
  • Not clear what the point of Justice Kennedy’s concurrence is, except to highlight that he sees this as a close case, to say nice things about the dissent, and to expound a little more about his view that religious liberty is about protecting people’s “dignity and … striving for a self-definition shaped by their religious precepts.”

We’ll have further analysis here at CLR Forum as we digest the opinion a little more. But, bottom line: a narrow decision and a win for religious liberty.

More on Corporations in Hobby Lobby

At the Religion News Service site, Cathy Lynn Grossman discusses the overheated rhetoric about for-profit corporations in the Contraception Mandate case, quoting my recent post on the subject at the Cornerstone site. As I’ve said, the Court could easily avoid the slippery slope by limiting its holding to close corporations like Hobby Lobby itself. Stay tuned — we’ll know pretty soon.

Movsesian on the Hobby Lobby Case

Cornerstone has published a short essay of mine on whether a corporation like Hobby Lobby qualifies as a person for purposes of RFRA. Relying on a comment from Chief Justice John Roberts at oral argument, I suggest that the Court may draw a distinction, for RFRA purposes, between large, publicly-held corporations and small, privately-held corporations like Hobby Lobby itself:

In truth, there is something very odd in the notion that a large, publicly-traded corporation with thousands of institutional shareholders around the world—Exxon-Mobil, for example—has religious scruples that guide its conduct. (Most Exxon-Mobil shareholders, I think, would be deeply surprised.) Large, publicly-traded corporations exist principally to make profits for the shareholders, who remain passive with respect to the corporation’s day-to-day operations. Religion is the farthest thing from their minds.

Moreover, if such corporations could exercise a religion, chaos could result. How would we determine when a corporation has a belief, Justice Sotomayor asked? Which of the thousands of shareholders would be entitled to raise their religious scruples? Would the majority of shareholders—51%—decide the matter for everyone else? What about the minority shareholders who object?

On the other hand, it isn’t strange to think that some for-profit corporations might exercise religion. As law professors Alan Meese and Nathan Oman argue in a recent essay in the Harvard Law Review, most American corporations are small, private firms with a only a handful of shareholders. In such corporations, the shareholders take great interest in day-to-day operations and may run their businesses with religious convictions in mind.

You can read my essay here.

Meese and Oman on Hobby Lobby

Alan Meese and Nate Oman, both of William and Mary, have written an exceptionally lucid essay in the Harvard Law Review Forum on one of the main issues in Hobby Lobby: whether a for-profit corporation can qualify as a person for purposes of RFRA. It’s one of the best things on Hobby Lobby I’ve read and I recommend it to people trying to make sense of the issue.

Meese and Oman make three big points. First, closely-held corporations like Hobby Lobby fit naturally within RFRA’s language. Second, there is nothing unusual about closely-held corporations that embody shareholders’ religions. Many such firms exist, and they do not violate some elementary principle of corporate law. Third, limiting the exercise of religion to natural persons mistakes an important goal of religious freedom. “[R]eligious freedom is broader than an individualist concern with personal rights,” they explain. “Rather, it is about limiting the ability of the state to regulate a particular kind of conduct–religious exercise–even when corporate bodies engage in that conduct.”

To me, the second point is the most suggestive for the outcome of Hobby Lobby. Most people think of corporations as large, publicly-traded firms with thousands of passive shareholders who have little to do with day-to-day operations: Exxon Mobil. It would be strange for such a corporation to exercise a religion. But most corporations, like Hobby Lobby itself, are small, private firms with a handful of shareholders. It’s not at all strange to think that the five owners of Hobby Lobby could legitimately want to run their corporation in a way that advances their religious values.

Meese and Oman argue against drawing a distinction, for RFRA purposes, between large corporations like Exxon Mobil and close corporations like Hobby Lobby. But the distinction could be a way for the Court to avoid practical difficulties. The Court could hold that close corporations like Hobby Lobby are RFRA persons and save the question of large corporations for another day. Indeed, Chief Justice Roberts hinted at that outcome during oral argument.

We’ll see what the Court decides. Meanwhile, Meese and Oman have written a very worthwhile essay. You can read it here.

Rice,”Contraception and Persecution”

Next month, St. Augustine’s Press will publish Contraception and Persecution by Charles Rice (University of Notre Dame Law School). The publisher’s description follows.

“Contraceptive sex,” wrote social science researcher Mary Eberstadt in 2012, “is the fundamental social fact of our time.” In this important and pointed book, Charles E. Rice, of the Notre Dame Law School, makes the novel claim that the acceptance of contraception is a prelude to persecution. He makes the striking point that contraception is not essentially about sex. It is a First Commandment issue: Who is God? It was at the Anglican Lambeth Conference of 1930 when for the first time a Christian denomination said that contraception could ever be a moral choice. The advent of the Pill in the 1960s made the practice of contraception practically universal. This involved a massive displacement of the Divine Law as a normative measure of conduct, not only on sex but across the board. Nature abhors a vacuum. The State moved in to occupy the place formerly held by God as the ultimate moral Lawgiver. The State put itself on a collision course with religious groups and especially with the Catholic Church, which continues to insist on that traditional teacher. A case in point is the Obama Regime’s Health Care Mandate, coercing employees to provide, contrary to conscience, abortifacients and contraceptives to their employees. The first chapter describes that Mandate, which the Catholic bishops have vowed not to obey. Rice goes on to show that the duty to disobey an unjust law that would compel you to violate the Divine Law does not confer a general right to pick and choose what laws you will obey. The third chapter describes the “main event,” which is the bout to determine whether the United States will conform its law and culture to the homosexual (LGBTQ) lifestyle in all its respects. “The main event is well underway and LGBTQ is well ahead on points.” Professor Rice follows with a clear analysis of the 2013 Supreme Court decision on same-sex marriage. Part II presents some “underlying causes” of the accelerating persecution of the Catholic Church. The four chapter headings in this part outline the picture: The Dictatorship of Relativism; Conscience Redefined; The Constitution: Moral Neutrality; and The Constitution: Still Taken Seriously? The answer to the last question, as you might expect, is: No. Part III, the controversial heart of the book, presents contraception as “an unacknowledged cause” of persecution. The first chapter argues that contraception is not just a “Catholic issue.” The next chapter describes the “consequences” of contraception and the treatment of women as objects. The third chapter spells out in detail the reality that contraception is a First Commandment issue and that its displacement of God as the ultimate moral authority opened the door for the State to assume that role, bringing on a persecution of the Church. The last chapter, “A Teaching Untaught,” details the admitted failure of the American Catholic bishops to teach Pope Paul VI’s 1968 encyclical, Humanae Vitae. But Rice offers hope that the bishops are now getting their act together Part IV offers as a “response” to the persecution of the Church three remedies: Speak the Truth with clarity and charity; Trust God; and, most important, Pray. As the last sentence in the book puts it: “John Paul II wrote in a letter to U.S. bishops in 1993: ‘America needs much prayer – lest it lose its soul.’” This readable and provocative book is abundantly documented with a detailed index of names and subjects.

CLR Podcast on Sebelius v. Hobby Lobby

In our most recent podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss last week’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case. We address the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve. We also make predictions about how the Justices will ultimately rule. The podcast will be useful for students and others looking for an introduction to this extremely important case.

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

Toobin: Hobby Lobby Challenge is About Hurting Poor People

Jeffrey Toobin has an article in The New Yorker (no, not the one about how Justice Thomas is incompetent because he is overweight) that expresses the view that the challenge to the contraceptives mandate in Hobby Lobby is really just part of a larger effort to deprive poor people of needed medical care. Here’s his evidence:

The political nature of the case was an open secret during the argument at the Court. Sotomayor told Paul Clement, the lawyer for Hobby Lobby, who was a solicitor general under George W. Bush, “You picked great plaintiffs.” (Customarily, of course, it is the plaintiffs who pick the lawyers.) Elena Kagan pointed out to Clement that he was really attacking the entire law. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, no, I don’t want to give that, that woman is quite directly, quite tangibly harmed.”

It comes as news to me that what Hobby Lobby objects to is the concept of a legislative subsidy, rather than a government regulation–and not a statute–that decides how the subsidy will be financed. And I’m sure Hobby Lobby will be surprised to learn that it doesn’t care about poor people–say, the poorer of its own employees for whom it provides health plans–health plans that some have urged it simply to abandon if it feels so strongly about its religious objections.

And here is a line from Peter Berger’s latest column: “I am not overly fond of The New Yorker magazine with its incongruous mix of politically correct articles and advertisements for outrageously expensive goods.”

Reflections on the Hobby Lobby Oral Argument: On the Establishment Clause Claim

It is of course always difficult to predict how the Court will rule on any issue, and this is certainly true in the Hobby Lobby case. From my read of the transcript of the oral argument, the least restrictive means analysis stole the show. There sure was a lot of discussion about the accommodation to religious nonprofits as a less restrictive means than what the administrative agency had decided on for for-profits. Justice Kennedy asked repeatedly about the issue of regulatory, as opposed to legislative, exemptions as a Free Exercise Clause and RFRA problem. See, e.g. 56 (“Now what–what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”).

On another matter, though, there was greater clarity in the argument. The government rejected the specific claim that an exemption in this case would violate the Establishment Clause. Here is the colloquy:

Justice Alito: Well is it your argument that providing the accommodation that’s requested here would violate the Establishment Clause

General Verrilli: It’s not our argument that it would violate the Establishment Clause. But it is our argument that you–in any RFRA case, including this one, you have to consider the impact on third parties, because otherwise, you will be skating on thin constitutional ice.

43. I am not quite sure what this means. But what it seems to mean is that, first, the government takes the position that this exemption, if granted, would not violate the Establishment Clause. And second, it seems to mean that RFRA itself, properly interpreted and applied, incorporates within itself Establishment Clause limits that relate to third party interests. That’s the claim I have made here. It is also the claim that this amicus brief makes. It also reflects the language in Cutter v. Wilkinson. It is a claim about the interpretation of a statute. It is not a claim that the statute violates the Establishment Clause if it violates a particular externally imposed threshold that is not spelled out in the statute itself. Solicitor General Verrilli went on to say that whatever third party interests are contemplated by RFRA are subsumed within the compelling government interest analysis right within RFRA: “[C]ertainly compelling interest analysis certainly does require consideration of the interests of third parties.” 44

Of course, that the government disavows a claim does not mean that the Court can’t go retrieve it on its own. But it was really only Justice Ginsburg who said anything at all about the Establishment Clause, and what she said seems also to be consistent with the point that RFRA (like RLUIPA) incorporates certain Establishment Clause limits. Justice Kennedy asked Attorney Clement how he “would suggest that we think about the position and the rights of the–of the employees[.]” Justice Kennedy then remarked that “the employees are in a position where the government, through its healthcare plans is…allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious–religious beliefs of the employer. Does the religious beliefs just trump?” 33

After a response from Mr. Clement, here’s what Justice Ginsburg said:

But, Mr. Clement, you made the analogy to RLUIPA. And the one thing that has not been mentioned up till now is the Establishment Clause. The Court was very clear when it came to RLUIPA, which you said is similar to RFRA, that the accommodation must be measured so it doesn’t override other significant interests. And that was true of Sherbert and that was true of Yoder. The–and the Cutter case, and this Court made it very clear, that the accommodation has to be balanced and you have to take into account other significant interests.

34. Later in the discussion, Justice Kagan referred specifically to the “tangible harm[]” that women will suffer who don’t get the benefit of the statute. But neither Justice Kagan nor Justice Kennedy specifically talked about the Establishment Clause. And the discussion of tangible harms on third parties then turned toward the issue of alternative means of accommodating those interests without burdening the religious objector.

Conference on Hobby Lobby (March 24)

Georgetown’s Berkley Center and Baylor’s Institute for Studies of Religion will host a conference on the Hobby Lobby case on March 24 at the Willard Hotel in Washington, DC:

Is religious freedom good for business? Can religious liberty aid economic development, or help reduce poverty? What are the limits of religious freedom? Under the law, are for-profit businesses entitled to the exercise of that right in the United States? Does the HHS contraceptive mandate under the Affordable Care Act restrict the religious freedom of businesses? What are the legal, economic, and political implications of the answer to that question?

On March 24, the day before Supreme Court oral arguments on the Hobby Lobby case, the Religious Freedom Project at Georgetown University’s Berkley Center for Religion, Peace & World Affairs will co-sponsor a half-day conference on these and related questions. The conference will announce a new partnership between the Religious Freedom Project and Baylor University’s Institute for Studies of Religion, the co-sponsor of the event. The conference will begin with an “On Topic” keynote conversation between Baylor University President and Chancellor, Judge Ken Starr, and Harvard University Law Professor, Alan Dershowitz.

Details are here.