The Roberts Court does nothing in small measures, so when Justice Samuel Alito, writing for the majority in Burwell v. Hobby Lobby, insists the decision granting closely held corporations religious objection rights under the Religious Freedom Restoration Act (RFRA) is limited only to the birth control benefit in the Affordable Care Act, don’t believe him. It’s not.
Like the Court’s decision in McCullen v. Coakley and Town of Greece v. Galloway, which also greatly advanced conservative causes but under the guise of “limited” First Amendment opinions, the decision in Hobby Lobby is an exercise in radical incrementalism. The 5-4 majority decision did not strike altogether the birth control benefit, nor did the decision rule broadly that corporations have First Amendment religious rights independent of the RFRA—but it set the path for future courts to do so.
Take first the issue of whether or not secular, for-profit corporations are “people” under the RFRA. As Justice Alito notes, the legal fiction of corporate “personhood” exists largely to provide protections to their individuals. What Justice Alito doesn’t note is that protections have never before been used to burden the rights of employees to the benefit of corporate owners.
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When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protections to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga and Mardel protects the religious liberty of the humans who own and control those companies.
In order to find corporations can exercise religious beliefs, Alito must conflate two very different scenarios. The first involves cases where the legal interests of employers and employees are largely aligned against those of the government; the second includes cases like Hobby Lobby, where corporate interests are trying to hide behind constitutional protections to deprive their employees of their rights. It’s a quick, but important, conflation that makes it possible for Alito to continue in the rest of his opinion to ignore the interests Hobby Lobby employees have in being free from religious discrimination by their employer.
With that judicial sleight-of-hand accomplished, Alito moves on to the larger question of just how a corporation can exercise these newly found religious rights. As it turns out, corporations practicing religious beliefs is remarkably simple, and just because a corporation seeks to maximize profit doesn’t mean it can’t do so in the name of religion:
While it is certainly true that a central objective of for-profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. … If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.
Did you catch that? If some corporations can support charitable causes, Justice Alito reasons, why not allow others to pursue religious causes such as avoiding complying with federal law?
As if sensing the alarm bells ringing in the wake of just proclaiming the existence of corporate religious rights, Justice Alito is quick to point out that because both Hobby Lobby and Conestoga Wood Specialties Corporation are “closely held corporations,”
the Court’s order is limited to similar businesses. Justice Alito doesn’t go so far as to say that the decision actually limits religious objections to those kinds of businesses—it just notes that no publicly traded companies have raised religious objections to the Affordable Care Act (ACA) like Hobby Lobby. Yet.
Having firmly established that closely held corporations (and probably publicly traded ones as well) can assert religious objections under the RFRA, the Court turns its attention to the birth control benefit specifically.
And here is where the Court’s deeply ingrained misogyny shines brightest.
Justice Alito writes that the Hahns and the Greens—the families who, respectively, own Conestoga Wood Specialties and Hobby Lobby—have a sincere religious belief that life begins at conception and that their religious beliefs provide both that they offer insurance coverage for their employees, but only insurance coverage that conforms to those religious beliefs. Justice Alito takes this as an opportunity to misstate the coverage requirements of the ACA. “Before the advent of the ACA, they were not legally compelled to provide insurance,” wrote Alito, “but they nevertheless did so—in part, no doubt, for conventional business reasons but also in part because their religious beliefs govern their relations with their employees.”
Of course, the ACA does not require employers to provide any health insurance coverage for their employees. Instead, the law requires those employers that do provide health insurance coverage offer that coverage equally for both men and women.
This a la carte type of coverage, where employers maintain ultimate veto authority over the scope of employee benefits, is of course the endgame to all these contraception challenges, and by opening the door to religious objections like Hobby Lobby the Court has set the stage for just that. The parties in Hobby Lobby sincerely, and wrongly, believe that emergency contraception and some forms of intrauterine devices (IUDs) act as abortifacients. But according to Alito, it doesn’t matter that the Greens and Hahns are wrong. All that matters is that they sincerely believe they are right.
[I]n these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS [U.S. Department of Health and Human Services] regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function … in this context is to determine” whether the line drawn reflects “an honest conviction” and there is no dispute that it does.
The decision is a bad one. So bad, in fact, that Alito spends the rest of his attention in the decision explaining that the Court’s conclusions are not as radical as they appear. “HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction,” Alito writes. “HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.”
HHS provided none of the evidence Justice Alito asks for because, as Justice Ruth Bader Ginsburg points out in her dissent, “[u]ntil this litigation, no decision of the Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.” In other words, that evidence didn’t exist because until this decision no corporation had made those kinds of claims.
Alito must really be concerned that his opinion will be dismissed as radical because his next move is to suggest that what the Obama administration really wants to do is force insurance coverage for abortions. If only!
“It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences,” says Alito. “Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide.”
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall it if conflicts with an employers’ religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interest (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
In other words, it’s not discrimination if it
affects women, and it’s probably not discrimination if it affects the LGBT community either. Oh, and there’s a good chance conservatives will use this opinion to launch a broader attack on civil rights protections in the name of religious liberty even though (wink wink, nudge nudge) the Court is only concerned with the contraceptive mandate.
Not surprisingly, it took Justice Ginsburg more than 30 pages to dispense with that dangerous nonsense in a scathing dissent that simply shreds Alito’s claims that his opinion is a narrow one.
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. Compelling government interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there will always be whenever, in lieu of tolling an enterprise claiming a religious-based exemption, the government, i.e., the general public, can pick up the tab.
This is not the first time Justices Alito and Ginsburg have been on opposite sides of a gender employment discrimination case. Last term, while Justice Ginsburg was reading from her dissent in Vance v. Ball State, the case that severely curtailed who is considered a supervisor for purposes of sexual harassment claims, Justice Alito rolled his eyes at claims she made that the decision didn’t reflect the realities of workplace harassment. It was a rare moment of displayed hostility by a sitting justice toward a colleague, but one that perfectly captures the disdain Alito shows for women, and especially women workers.
Like she did in Vance, Ginsburg schools Alito on the workplace barriers women face, and once again it’s clear Alito doesn’t care.
In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ.
But just what kind of accommodation will satisfy the conservatives on the Roberts Court remains an open question. Justices Alito and Kennedy suggest accommodating corporate religious beliefs the same way the administration is currently trying to accommodate nonprofit religious beliefs as one possibility. Naturally, the Court withholds judgment on whether it believes the current religious accommodation is actually constitutional, and with cases winding through the appellate courts on that very question, that’s very much a live issue, as is nearly every issue in these cases.
Just how far do corporate religious rights extend? Who knows.
Will federal courts be put in a position to pick and choose which religious beliefs are sincerely held and which ones are not? It looks that way. Will the decision be used to enable employers to object to providing other health-care services, like HIV treatments? Seems likely, but we’ll have to wait for the lawsuits.
In fact, it seems Monday’s decision really only answered one question: When given the opportunity, will conservatives on the Court rule against the fundamental humanity of women?
The answer is yes. Every time.