Hobby Lobby Was Rightly Decided

Democratic campaign strategists struck gold with the “War on Women” trope.  They used it to acquire a double-digit lead among half of the American electorate, make Republicans shake in their boots for fear of losing the culture war, and rally the zealous support of young liberals. Given such heated rhetoric, the left’s apoplectic reaction to the Supreme Court’s June 30th ruling in Burwell v. Hobby Lobby was hardly surprising. At issue was the refusal of Hobby Lobby, a for-profit corporation, to purchase insurance for its employees covering all of the contraceptive methods mandated by the Affordable Care Act (ACA). The company’s owners objected on the grounds of their fundamentalist Christian theology, which proscribes support of ostensibly immoral birth control devices. When the justices ruled 5-4 in favor Hobby Lobby, progressives once again leapt to their favorite refrain. They said that the decision had opened “a new front” in the War on Women. They said that the Court essentially decreed that “women aren’t people”. They said that corporations now have a “right to impose their religious views on employees.” However, what they failed to recognize was the jurisprudential truth — that, from a legal standpoint, Hobby Lobby was an absolutely correct decision.

Although it’s common for the whirlwind of politicization to distort the facts of a Supreme Court case, a number of particularly staggering misconceptions conceal Hobby Lobby’s straightforward and legally defensible resolution. Foremost among them is the idea that the Court made its decision on First Amendment grounds — ruling in favor of Hobby Lobby as a blind protection of the constitutional right to practice religion at the cost of employee welfare. Behind this misconception is the belief that the Court always uses constitutional interpretation when deciding cases, when in fact it often relies instead on its complementary powers of statutory interpretation. In the latter approach, the justices interpret a particular law’s aim, whether it is internally consistent and coheres with other laws and whether the law permits other interpretations and exceptions. At no point, when using statutory interpretation, does the Supreme Court steep its ruling in the country’s founding document.

Hobby Lobby was a statutory case. The piece of legislation in question was the Religious Freedom Restoration Act (RFRA). Passed in 1993, The RFRA stipulates that “[g]overnment shall not substantially burden a person’s exercise of religion” unless doing so “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” Under this standard, the government may only pursue a “compelling interest” if it does so while infringing on religious freedom as little as possible. As noted by University of Minnesota law professor David Schultz, these conditions mean that policymakers cannot simply do what they “merely prefer” with little or no deference to religious freedom. If a policy poses such an infringement, lawmakers must show that the particular religious freedom abridgment is absolutely “necessary or crucial” to accomplishing the government’s ends. When Congress passed the RFRA it put substantial constraints on government actors and carved out a generous sphere of religious liberty.

Critics might charge that such a rule should not exist because it has negative practical implications, but this assertion is not a constitutionally justifiable reason to decry the Hobby Lobby ruling. Whether or not Congress should do something has no bearing on whether it can do something, and the Supreme Court is almost exclusively concerned with the latter domain. As long as Congress does not simultaneously renege on other constitutional obligations, our democratically elected legislators have the prerogative to go above and beyond when protecting religious freedom — which is what they did when they passed the RFRA. Whether that protection comes at the cost of other values some hold dearer is a normative question, and whether the method in which religious freedom is protected has negative repercussions is one for policy analysts. In short, the Court has no authority on either of these questions.

Although the RFRA safeguards religious liberties, it does initially seem dubious whether corporations are entitled to this protection. Can a corporation really constitute the “person” to whom the law refers? In the post-Citizens United era many liberals, wary about conceding any notion of corporate personhood, reflexively respond “no.” Yet Hobby Lobby did not establish that corporations have an intrinsic right to freedom of conscience. Instead it held that certain corporations can act as the forum for individuals’ religious choices, and as such the government indirectly constrains these individuals’ faith-based activities by upending this forum.

Not all corporations are considered a platform for religious belief. To be one such company, the justices found that a corporation must have a concentrated set of primary owners whose business practices mirror their religious beliefs. These qualifications are meant to ensure that a corporate claim to conscience is genuine, emanating from the theological convictions of those in charge rather than serving as a cost-evasion tactic. There can be no question as to whether Hobby Lobby’s business practices comport with the owners’ Christian faith. Hobby Lobby CEO David Green and his family, who cumulatively own 100 percent of the company, donate half of pre-tax corporate earnings to evangelical and charitable causes. They also close their stores on Sunday “to allow employees time for family and worship,” thereby sacrificing hundreds of millions of dollars in business annually. Lower returns are obviously not desirable to any solely self-interested proprietor. Given the aforementioned evidence it is hard to contest the importance of the Greens’ religious beliefs to the running of their business. The Court, taking this evidence into account, decided that the Greens and business owners like them deserve to have their companies seen for what they are: an incarnation of deeply held religious convictions.

Given the relevance of the RFRA, the justices did not need to consider whether government-provided contraception was pragmatically good. Instead, they only needed to prove one thing for the law to be void: That by forcing religious employers to cover birth control, the government was infringing on their beliefs more than was necessary to ensure access to reproductive healthcare. In the case of Hobby Lobby, the magnitude of this infringement is no small matter. As Justice Alito pointed out in the majority opinion, were Hobby Lobby not to comply with the ACA it “will pay a very heavy price — as much as $1.3 million per day, or about $475 million per year…. If these consequences do not amount to a substantial burden, it is hard to see what would.” By imposing such large financial hindrances, the law would force religious business owners to choose between violating their deeply held religious convictions or being excluded from a variety of free enterprise activities.

While opponents of the final ruling say that this is a worthwhile tradeoff, under the RFRA it is not one that the government is allowed to make. That’s because, pursuant with the RFRA, there exists a less restrictive policy alternative that satisfies women’s health needs while imposing far fewer restrictions on religious practice: The government could simply pay for birth control directly, instead of having employers foot the bill for mandated insurance plans. In this way contraception would be funded out of the general tax revenue rather than exclusively from the coffers of a given corporation. Such a policy would pose a lesser constraint on the economic activities of pious entrepreneurs while also promoting reproductive healthcare.

The Obama Administration already does something like this for religious nonprofits. The Center for Consumer Information and Insurance Oversight states that, as part of a 2013 compromise, some sectarian organizations “do not have to contract, arrange, [or] pay … for contraceptive coverage. At the same time, separate payments for contraceptive services are available for women in the health plan of the organization, at no cost to the women or to the organization.” The federal government provides these women with contraception by paying for the birth control portions of the plans, and does so without incurring any extraordinary cost to the taxpayer. The Court thereby reasoned that the government could feasibly do something similar for profit-making corporations. Given the clear presence of viable alternatives for expanding access to contraception, the ACA mandate fails the RFRA’s “least restrictive means” test.

Hobby Lobby was not the end-all decision for women’s rights that its detractors claim it to be. By being more religiously restrictive than necessary, the birth control mandate violates Congress’ own ordinances. Hence the Supreme Court found it void. Nevertheless, some people maintain that this ruling was wholly inadequate. In so doing they imply that the Court should have neglected its constitutional duty to interpret the law and instead promoted “better” policy outcomes. Yet to say as much is to assert that the liberal zeitgeist ought to be an overriding mandate in constitutional thought. On the contrary, it seems decidedly anti-liberal (in the classical sense) for an unelected group of nine to usurp power from elected representatives. Wisely, the Court did no such thing. Instead it issued a narrow, modest ruling that reasonably interpreted existing statutes. The fact that this was distorted into a “War on Women” says more about its opponents than it does about five justices.

One comment

  • Many wish David Green would make the right decision and fund what God wants him to fund… Town of Love in Oklahoma City. Even David Green refuses to obey God.


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