Ari Ezra Waldman | Law - Gay, LGBT | News | Religion | Supreme Court | Women's Issues

Hobby Lobby and the Democrats Who Want to Fix It

SupremesBY ARI EZRA WALDMAN

In Burwell v. Hobby Lobby, the Supreme Court's conservative majority allowed a large swath of for-profit companies to deny contraception to their female employees. Hobby Lobby, a national chain of arts and crafts stores, is a privately held, for-profit company that is run by a religious family. It's not a church. Nor is it a religious-based organization. It is simply a company that happens to be owned by religious people, but employs about 21,000 of varying beliefs. The owners objected to the part of Obamacare that required employers to provide health insurance that includes access to certain forms of contraception. They challenged that requirement and won, leaving the Supreme Court with a decision that declared that Hobby Lobby was a "person" entitled to the religious rights of persons.

We discussed the details of that decision here, in Part 1 of this three-part series on Hobby Lobby. In Part 2, I discussed how the Supreme Court actually made Hobby Lobby worse! For now, let's put aside our understandable anger at a decision that discriminates against women, denies necessary health care to those who need it, abuses precedent, and bloats religious freedoms to dangerous levels.

Hobby Lobby was a confusing decision and it is worth discussing it again not only so we can all understand it, but so we can fully appreciate its potential effects on the LGBT community. The ruling discussed religious freedom, which is enshrined in the First Amendment, but it was really based on a statute passed by Congress called the Religious Freedom Restoration Act (RFRA) (as if religious freedom needed to be restored). It talked about corporations deserving the freedoms of persons, but it never fully explained if corporate personhood applies to everything or just certain freedoms and rights. Then, after going out of its way to explicitly narrow and cabin the decision to very specific situations, the Court majority did an about-face the next day, possibly expanded the scope of the decision, and admitted to the American people that, sometimes, the majority's words are just words, nothing more.

The decision did a lot of damage. So much damage, in fact, that Democrats in Congress are introducing legislation to overturn the decision. Speaker Boehner's conservative majority in the House is never going to bring the bill to the floor; the act of introducing the bill of pure (and great) politics. But to most of us, the entire scenario begs the question: How can Congress introduce a bill aimed at overturning a Supreme Court decision?

AFTER THE JUMP, I delve into the legal background of the Hobby Lobby decision so we can see how the case was decided and how legislation could fix it. 

AlitoWriting for a 5-justice majority, Justice Samuel Alito found that requiring all employers to provide contraception health care coverage for their employees substantially burdened the religious liberties of employers who believe that contraception violates their religious beliefs. In passing RFRA, Congress stated that no federal law should "substantially burden" a person's freedom to exercise his or her religion. And since the law often employs the shorthand tool of considering corporations like persons -- traditionally, for the purposes of being sued and using the court system -- the Court said that corporations enjoy the same rights as persons under RFRA.

Hobby Lobby, then, was a decision based on a statute about religious freedom. It was not, strictly speaking, based on the First Amendment's guarantee of the free exercise of religion, although it was certainly mentioned and it certainly played a role.

A little bit of history. Sometimes, laws and regulations conflict with individual rights. When they do, it is common for courts to balance the burdens caused against the compelling need for the law. Regular readers of Towleroad will see hints of what we have been calling "strict scrutiny" in that balancing test, but that is a longer discussion for another time. This balancing of freedom and compelling need was what the federal judiciary used to do when it came to laws that had the indirect effect of conflicting religious freedom. So, for example, states have laws requiring children attend school until at least the age of 16. The Amish of Pennsylvania have a different set of beliefs, one that requires children to begin work and their dedication to Amish values long before 16. The Pennsylvania school attendance law conflicts with Amish religious liberty. When this case came before the Supreme Court, the justices balanced religious freedom and the state's compelling interest in education and found that the state could not force the Amish children to attend school.

Then, a man in Oregon was fired from his job for smoking peyote (a drug) even though peyote use was part of his religious experience as a member of the Native American Church. In 1990, the Court dropped the balancing test and found that generally applicable laws -- or laws that apply to everyone and do not single out a particular religion or group for discrimination -- need not have a "compelling state interest" to limit religious freedom. In the Oregon case, the law was that you cannot collect unemployment benefits if you were fired from your job for committing a crime, i.e., smoking a controlled substance. The state no longer had to meet a heavy burden to keep that law in place under the Constitution.

Congress reacted to this decision (Employment Division v. Smith) with RFRA, which said that even generally applicable laws cannot substantially burden a person's religious liberty. If they do, the only way they could pass Constitutional muster was if there was a compelling need for the law and the law was the narrowest it could be.

Think of RFRA as giving meat to the First Amendment's guarantee of religious liberty. Giving the basic requirement of the First Amendment, courts could use the balancing test (and give religious liberty a leg up) or it could use the standard from Smith (and allow regulations to win out). The Constitution is silent on the particular standard. So, Congress passed RFRA to mandate a standard.

HobbylobbyIf Hobby Lobby was based on RFRA, then if Congress did not like the way Hobby Lobby came out, it could do any of several things. 

It could change or clarify RFRA. It could say that, in fact, RFRA does not apply to corporations. The word "person" in the statute could be defined to explicitly exclude all types of corporations, some types of corporations, or just a few. 

Congress could also simply remove RFRA from the health care arena. In the Senate, Democratic Senators Patty Murray of Washington and Mark Udall of Colorado have introduced legislation prohibiting discrimination against female employees in the provision of any health care coverage guaranteed under federal law and explicitly prohibits the use of any other federal law (read: RFRA) to exempt employers from that requirement.

Congress could mandate that the federal judiciary return to the weaker standard employed in Employment Division v. Smith and bury the balancing test. This could have the broadest impact by far because it would go beyond the narrow confines of health care and contraception and apply to all generally applicable laws that could burden religious liberty. Those laws could include public accommodations laws that prohibit bakers, florists, restaurant owners, shopkeepers, and others from discriminating on the basis of sexual orientation. 

***

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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. Blah blah blah.
    Why do you ignore that Hobby Lobby wanted to cover oral contraceptives and depo Provera and Nexplanon but did not want to pay specifically for IUDs or Plan B?

    Posted by: Mike | Jul 16, 2014 11:15:01 AM


  2. Let it go, let it go.....

    Posted by: Mike | Jul 16, 2014 11:16:52 AM


  3. Not going anywhere. Repubs control the House, and will likely control the Senate very soon.

    Posted by: Malcolm | Jul 16, 2014 11:28:34 AM


  4. The text of the RFRA is obviously talking about persons as human beings. All Congress needs to do is amend it to clarify that.

    The Supreme Court's reliance on the Dictionary Act was weasily and dishonest.

    Posted by: BobN | Jul 16, 2014 11:40:15 AM


  5. @Mike: It is not so much about the specifics of what they excluded, as the fact that a for profit company has been recognized as having religious freedoms that supersede the right to healthcare of it's employees. From an NPR article: "Barry Lynn, executive director of Americans United for Separation of Church and State, told KHN that in health care alone, "Scientology-believing employers could insist upon non-coverage of its nemesis, psychiatry. And Jehovah's Witnesses' corporations could demand exclusion of surgical coverage, under the theory that so many of such procedures require the use of whole blood products, forbidden by their faith." The Supremes stated that it was a decision limited in scope, but their very actions immediately negated that limitation.

    Posted by: Henry | Jul 16, 2014 11:44:23 AM


  6. Blah blah blah.
    Why do you all ignore that I'm a Republican that hates women and am pro-life and hate everything LGBT? My family raised me to hate queers and women and I'll be damned if my sinful, secret lust gets in the way of this God given bias. How else will I get my family to love me?

    Let it go, let it go.....

    Posted by: Mike | Jul 16, 2014 11:48:37 AM


  7. It is not because they did not want to PAY; it is because they did not want their employees to gain access to drugs that disturb their conscience ("human" conscience; there is no such thing as "corporate" conscience). They would rather pay up dearly to cover the cost of pregnancy than to provide for this type of contraception. So this is NOT about $$; as it is more costly to have a pregnancy, which they are happy to cover. This is about ideology and whether a corporation can have an ideology or conscience.

    Posted by: derwood | Jul 16, 2014 11:58:51 AM


  8. Corporations and businesses are made up of owners that have religious beliefs and consciences. As such, I think they have constitutional rights to religious liberty just like individuals. Also, I think that the government should have a compelling interest and exhausted all alternatives before imposing on companies to violate the owners' sincerely held religious convictions. Religious liberty is an apex, foundational right, enshrined in the first Amendment. Therefore, the government has to put forth a compelling reason to intrude on it.

    Posted by: Malcolm | Jul 16, 2014 12:06:01 PM


  9. Relgious "liberty" > the rights of women (and the rights of gays, but shhhhhh that's just between us). If I can't force my religious convictions down the throats of every single employee of my major corporation, then what's the point?

    Posted by: Malcolm | Jul 16, 2014 12:15:59 PM


  10. Malcolm has a point. A Hindu or Muslim family has the right to control whom their daughter should marry. They can beat her up and kidnap her to force her to marry a person of the family's choice. All for the reason of "deeply held" religious belief. Too bad they have the "wrong" type of religion that they can't do that, at least not in the US of A.

    Posted by: simon | Jul 16, 2014 12:27:51 PM


  11. Nobody is born religious. Being religious is a choice. Since you choose to be religious, that choice should not be protected under the U.S. constitution.

    Posted by: Gus | Jul 16, 2014 12:31:28 PM


  12. Some Catholics will say contraceptive is a "luxury" for women, just as marriage is a "luxury" for the gays. They can live without that. What I say to that is religion is also a luxury which you don't absolutely need.

    Posted by: simon | Jul 16, 2014 12:41:25 PM


  13. When corporations start paying taxes at the same percentage rate as individuals, then maybe this corporate personhood might be a little more reasonable. But since the only ones making the decisions are the executives at the very top, it's looking more and more like their rights mean much more than the rights of people lower in the corporate pecking order. Shameful.

    Posted by: The milkman | Jul 16, 2014 1:03:54 PM


  14. When corporations start paying taxes at the same percentage rate as individuals, then maybe this corporate personhood might be a little more reasonable. But since the only ones making the decisions are the executives at the very top, it's looking more and more like their rights mean much more than the rights of people lower in the corporate pecking order. Shameful.

    Posted by: The milkman | Jul 16, 2014 1:03:56 PM


  15. When corporations start paying taxes at the same percentage rate as individuals, then maybe this corporate personhood might be a little more reasonable. But since the only ones making the decisions are the executives at the very top, it's looking more and more like their rights mean much more than the rights of people lower in the corporate pecking order. Shameful.

    Posted by: The milkman | Jul 16, 2014 1:03:56 PM


  16. Time to start the health insurance voucher system, where much like the school voucher system where you take a the money earmarked for you child to attend public school and use it to help pay for a private school, and let people take the money the company would pay for its insurance and let people buy health insurance that includes services and medications that better suits their needs.

    Posted by: Garst | Jul 16, 2014 4:48:03 PM


  17. ""and let people take the money the company would pay for its insurance and let people buy health insurance that includes services and medications that better suits their needs.""

    The complete antithesis of "ObamaCare". And BTW the idiotic Harry Reid Hobby Lobby thing died in the Senate thanks to some worried Democrats up for election.

    Posted by: Mike | Jul 16, 2014 4:54:55 PM


  18. Garst:
    Not sure what purpose a "voucher" will serve. Right now many employers offer a large number of choices with different insurance companies and different premium. Sometimes it is very difficult to pick one.

    Posted by: simon | Jul 16, 2014 5:35:08 PM


  19. "Let people take the money the company would pay for its insurance and let people buy health insurance that includes services and medications that better suits their needs."
    That is exactly want employers like Hobby Lobby should do. Unfortunately they chose to poke their nose into the plan an employee wants to buy, voucher or no voucher. If they kept their hands off, the whole hobby lobby saga wouldn't have happened.

    Posted by: simon | Jul 16, 2014 6:13:20 PM


  20. The ACA already discriminates against men by explicitly excluding requirements to cover FDA-recommended vasectomies.

    Contraception isn't a "women's issue". It's for all people who have sex that could result in conception.

    Posted by: Randy | Jul 16, 2014 8:19:21 PM


  21. "Think of RFRA as giving meat to the First Amendment's guarantee of religious liberty"

    Only if the "meat" is a urinary bladder.

    RFRA is a religious supremacy law.

    Posted by: Randy | Jul 16, 2014 8:28:28 PM


  22. It is a simple concept, one that a three year old could understand. But long ago the Supreme Court fabricated the idea that corporations are people and they have created a whole web of decisions on this precedant. I am not a legal scholar but I think this was first put forth in the 1890's during the age of the robber barons. Our new robber barons are intent of protecting this precedent.

    Posted by: Charlie | Jul 17, 2014 9:51:29 AM


  23. Oops. The first line of my post got cut off--
    Shakespeare: "If you prick us, do we not bleed?"

    Posted by: Charlie | Jul 17, 2014 9:57:24 AM


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