Michael Gizzi,  Illinois State UniversityMichael Gizzi is an associate professor of criminal justice who teaches constitutional law at Illinois State University, and holds a Ph.D. in political science from The State University of New York at Albany. His blog can be found at: michaelgizzi.tumblr.com and on twitter: @rockymtnhigh.

Burwell v. Hobby Lobby

Every June the nation’s attention turns to the United States Supreme Court as it announces its decisions in the most important cases of the Term. Without fail, the cases with the most public interest come near the end of June. This year has been no exception. Last week, the Court made a major ruling limiting police searches of cell phones after arrests, struck down buffer zones in front of abortion clinics, and limited presidential recess appointments. The Court ended its term on June 30, with two major decisions, one limiting labor unions in their ability to compel public employees to join, and the second in a case where two privately-held companies (the most prominent of which was the arts and crafts store Hobby Lobby) sought to be exempted from the Affordable Care Act’s requirements of providing contraception coverage for employees. The owners of Hobby Lobby sought to be exempt from the mandate as a matter of free exercise of religion.

As has been true in many of the major decisions of the Roberts Court, the justices were closely divided. Writing for a 5-4 majority, Justice Alito argued that Hobby Lobby’s objection was covered under the Religious Freedom Restoration Act (RFRA) of 1993, and the government failed to show why the contraception mandate was the “least restrictive” means of accomplishing the government’s interest under the ACA. Alito held that the for profit corporation Hobby Lobby is to be treated under the law as a person, and to have the same religious liberty as any individual.

How do we make sense of this?

It is difficult to boil a 95 page decision to a few pages, but I will try to hit the main points. Perhaps we should start with the text of the First Amendment which begin with the words “Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof.” Free exercise of religion is intended to provide people with the right to profess whatever religious beliefs they want, whereas the “establishment” clause (often referred to as separation of church and state, thanks to Thomas Jefferson) prevents state sanctioned or state sponsored religion. Under our Constitution there is no state religion. While I am a member of the Presbyterian Church (U.S.A.), the “(U.S.A.)” simply designates that we are a presbyterian denomination IN the United States, and not even the only one! Government can not force me to be a Presbyterian, any more than it could insist that I believe in any religious tenet.

HobbyLobbyThe Hobby Lobby case deals with the “Free Exercise” part of the First Amendment. As is true for most of the Constitution, the text does not define what free exercise means. I can believe what I want, but does that limit what government can do in relation to my beliefs? Can government compel me to pay taxes which are used to fund wars that I object to on a religious basis? Can government deny me unemployment benefits because I refuse to work on the Sabbath, when work is available to me on that day? How much “action” is protected or proscribed by “belief.” In her dissent, Justice Ginsburg evokes a famous line from a law professor “With respect to free exercise claims,… your right to swing your arm ends just where the other man’s nose begins.”

Up until 1990, the Court relied on a 1963 case called Sherbert v. Verner to interpret the limits of free exercise. The Court used a “compelling interest test,” which held that for there to be a free exercise violation it was necessary to show that the challenged action imposed a substantial burden on the practice of religion, and if it did, whether the government’s action had a compelling interest. The Sherbert test was fairly protective of individual rights, but the conservatives on the Rehnquist Court abandoned it in 1990, when they decided Employment Division v. Smith. This case involved two members of the Native American Church who were denied unemployment benefits because they ingested peyote for sacramental purposes. The Court established the current standard for free exercise that interprets the Free Exercise clause as not being violated when prohibiting of religion is not the government’s purpose, as long as it passes “neutral, generally applicable laws.” If the effect on free exercise is incidental, then the First Amendment is not offended. Smith did indeed lower the protection afforded by the Sherbert test, but it did not eliminate it either. Just two years later, the Court decision in Church of the Lukumi Babalu-Aye v. Hialeah unanimously struck down a Florida city ordinance that banned animal sacrifices done as part of a religious exercise. Those ordinances were not neutral, they were aimed solely at the Santeria religion.

Once Bill Clinton was in office, Congress attempted to restore the stronger protections of the Sherbert test by passing the Religious Freedom Restoration Act of 1993. RFRA attempted to restore the substantial burden test. A few years later the Court invalidated some of RFRA claiming that it was for the Court and not Congress to interpret the First Amendment. Congress then passed a new law, that claimed to accomplish the same thing under the Commerce Power, which is far too complex of an issue to even try to explain here, so lets just recognize that that RFRA still is in existence.

This brings us back to the Court’s decision. If Hobby Lobby’s claim were to be measured under the Smith standard, the constitutional issue would be whether the contraception mandate for for profit corporations (with more than 50 employees) was a “neutral, generally applicable law.” Given that the contraception mandate applies to all for-profit corporations, there really is no valid Smith claim, and thus to rule for Hobby Lobby, the Court would either need to abandon Smith or find another way to reach the same outcome. Alito does not even attempt to make a constitutional argument. Instead, he turns to RFRA to provide the basis to strike down the mandate, by interpreting the act very broadly, and making the bold assumption that the Hobby Lobby Corporation has standing to make a free exercise claim. To do so, he has to establish that the corporation is a person under the law. Instead of a constitutional law decision, we are given an exercise in statutory interpretation.

Alito uses similar logic from the Citizens United campaign finance case, concluding that a corporation is a person. He relies on an obscure part of the U.S. Code, “The Dictionary Act” which provides definitions the Court is supposed to use to interpret statutes. In reading the Act, he claims that a corporation is to be understood as a person, even though he strangely acknowledges the concept is a “legal fiction.” Justice Ginsburg points out in dissent that the Dictionary Act is only controlling if applied when the context does not indicate something to the contrary. And the very text of RFRA defines religion freedom as applying only to a “person’s free exercise of religion” not a corporation.

Once Alito determines Hobby Lobby is a person, he applies the Act’s substantial burden test and declares that forcing it to provide contraception coverage substantially burden’s the corporation’s free exercise of religion by imposing large financial costs on it for failing to provide coverage for the mandate. The Court acknowledges without explanation that the government has a compelling interest in providing women with reproductive health services, but argues that the Act is not the least intrusive way to accomplish this goal. The government could provide the same services to all women for less than the cost of the ACA. And since the Obama Administration has already provided an “out” for non-profit religious organizations (where the government and/or the insurance companies would pay the mandate for objecting organizations), the same could occur here.

Justice Ginsburg authored a stinging 35 page dissent, in which she challenged virtually every element of the decision. She writes that “Religious organizations exist to foster the interests of people subscribing to the same religious faith. Not so for for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from from one religious community.” She viewed the Court as venturing into a minefield, in which the rights of “legions of women” could have their access to contraceptives denied because they work for employers who do not share the same religious views.

What do we make of this decision?

I would argue that the Court’s unwillingness to even address the constitutional issues at stake from Employment Division v. Smith suggest that the Court is not really interested in religious liberty. The five justices in the majority see their interpretation of RFRA as a way to limit part of President Obama’s Affordable Care Act. The same five justices have extended First Amendment speech rights to private corporations in campaign finance matters, the decision today broadly expands the power of corporations, in what truly is a legal fiction. Corporations do not profess religious beliefs. It is a farce to claim they do.  This case is about advancing corporate power, not religious freedom.

It is also unclear whether today’s conservative bloc has the same understanding of religious liberty as the six justices who decided Smith in the Rehnquist Court. I remember at the time thinking that Smith was a terrible decision that severely limited individual liberty. Yet, in comparison with the smoke and mirrors of Hobby Lobby, perhaps Smith is ok. Ultimately the problem rests with the way that RFRA is used – and abused – by the Court in today’s decision. And in the end, that all boils down to the idea of Hobby Lobby as even having a religious interest. It is an arts and crafts store, not a church. It is a corporation, not a person.

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