The long-awaited Supreme Court opinion in Burwell v. Hobby Lobby Stores, Inc. regarding the constitutionality of the contraception mandate in the Affordable Care Act was handed down yesterday Monday 30 June. (I do not consider the companion case of Conestoga Wood Products, because the Conestoga case is essentially identical.) In a nutshell, the Court held that for-profit corporations that are “closely held” – i.e., that are privately owned and that do not issue stock – may be exempted from the as-written contraception requirement, in instances where that requirement violates the religious conscience and principles of the business owners. Publicly traded corporations – e.g., Boeing, Microsoft, Amazon, et al. – are not exempt. At issue in the case were four contraceptive drugs on the FDA list of 40 contraceptive drugs and devices incorporated into the ACA which, while not abortifacients per se, nevertheless could potentially have spontaneous miscarriage as a possible side effect. Hobby Lobby expressed no objection to the other drugs / devices on the list, and objected to those four drugs on the grounds that human life begins at the moment of conception, that therefore any drug that could cause a spontaneous miscarriage was a de facto abortifacient, the explicit intent of the drug notwithstanding, and that using such, or even listing it as being covered by the company’s employee health insurance plan, would be contrary to the religious and moral principles of the Green family that owns Hobby Lobby. On the one hand, the Court’s decision is a tribute to the importance attaching to freedom of religious belief and practice in the American constitutional culture. On the other hand, the decision does raise serious questions about the consequences that might conceivably ensue once Burwell becomes an entrenched part of precedent in related decisions that, in the future, are almost certain to follow.
In what follows, it should be carefully noted that I am mostly asking questions, proposing only educated guesses, not definitive answers. I am neither a lawyer nor a professional constitutional scholar. However, I have devoted most of the last five years, beginning the year before I retired from the Boeing Company, to voluminous reading, especially in the area of the First Amendment, and most especially in the area of “establishment”- and “free exercise”-clause history and case law, and to auditing courses on constitutional law through Yale Law School (via Coursera) and the University of Washington law school. Nevertheless, I am not qualified to pronounce authoritatively on these issues. But I do know enough to ask pertinent questions. The following are among the questions in my mind that are prompted by Burwell and that I would be interested in seeing addressed by those who are qualified to deal with them definitively.
If a hospital or clinic run by a religious sect whose principles cause it to object to modern medicine, opting instead for prayer, Bible reading, etc., were called upon to perform surgery or a blood transfusion, would the Burwell decision sanction the facility’s refusal?
My best assessment is: almost certainly not. Every right enumerated in the Bill of Rights is hedged about with qualifications and restrictions deriving both from common sense and from a recognition that we live together in a community where individuals’ rights are often in conflict with one another. In such conflicted situations, the state, through the courts, must very often adjudicate among the competing interests of disparate parties. For example, we have freedom of speech under the “abridgement” clause, but freedom of speech, as Mr. Justice Holmes stated in Schenck v. the United States in 1919, does not give anyone the right to falsely yell “Fire!” in a crowded theater. (Or there is Woody Allen’s paraphrase: “Freedom of speech does not give anyone the right to yell 'Movie!' in a crowded firehouse.”) Religious groups have a “liberty interest” in being able to oppose blood transfusions and surgery, but the state has a co-equal “compelling interest” in the preservation of life, and the latter almost always prevails, especially in exigent circumstances. In general, in this and in other similarly urgent circumstances, the “liberty interest” in the free exercise of religion is secondary to the overall welfare of the community. “Free exercise” gives no religious group the right to sacrifice virgins to the Sun God.
But not all cases are so clear-cut and unambiguous. For example …
Could conservative evangelical / Reformed owners of a closely held business, who believe in the subordination of women, be granted a religiously based exemption from EEO / fair employment practices laws that would otherwise require them to afford women an equal opportunity for job promotions, promotions that would often place the promoted women in authority over men?
My best guess: probably not, but … I say “probably not” because inhibiting the free flow of talent in corporations would work harm to the society as a whole, hobbling the economy by subordinating it to the religious dictates of a miniscule minority of very conservative religious believers. In other words, giving the sect’s religious scruples precedence would be a case of the tail wagging the dog. Such cases would not be comparable to the Hobby Lobby / ACA case because, if employees elect to use one of the four proscribed contraceptive substances, they are free to purchase such with their own money. There is no categorical prohibition. (On the other hand, and in all fairness, neither is there a “categorical prohibition” against women leaving the conservative company and seeking employment with firms where their chances for advancement are greater. So … )
Could a closely held conservative Christian real estate agency be granted a religiously based exemption from fair-housing laws that would otherwise require them to rent residential properties impartially to Caucasians & African-Americans? Or could a closely held evangelical / Reformed restaurant chain be granted a religiously based exemption from laws requiring them to serve all patrons, regardless of race?
Again, my best guess: probably not, but … impartiality as to race is not the only issue. There was a spate of laws that for a time were under serious consideration in very conservative States whereby providers of goods and services would be legally exempt from any obligation to provide their goods and services to people of minority sexual orientations. The usual conservative justification was to argue that anti-discrimination laws based on race are permissible, whereas laws mandating similar impartiality toward LGBTQ people are not, because, unlike race, sexual orientation – at least, so the usual conservative argument goes – is allegedly a matter of choice, not genetics. As a matter strictly of personal opinion, I am not seriously concerned that the Burwell decision will be seized upon by very conservative, “closely held” businesses as an excuse to roll back race-related EEO and fair-housing legislation, because in such cases, we are dealing with settled law. By way of contrast, the case of sexual orientation is in the process of settling, but is not yet settled, as witness, e.g., States in which employees can still be fired on the basis of sexual orientation and in which marriage equality is still not yet a reality. Consequently, I am more concerned with the consequences of Burwell with regard to the status of LGBTQ people in Hobby-Lobby- / Conestoga-like “closely held” businesses.
In both the above cases, the “but … “ part of my tentative answer is a consequence of the question of how “compelling” a “compelling interest” must be – in the post-Hobby-Lobby world – in order to be sufficiently “compelling” for the state to overrule a sect’s “free exercise” prerogative. For “closely held” private companies post-Burwell, how high is the bar that must be surmounted in order for the state to demonstrate a “compelling interest” of sufficient exigency to justify curtailing “free exercise”? I don’t know that we have the answer to that yet.
But in a broader sense – and here, I certainly hope I am wrong and that I am overreacting – I am most concerned that Burwell could eventually result in a two-tier economy, depending on how the case law unfolds with time. We could end up with a “closely held” tier in which the religious and ethical convictions of the business owners are accorded much greater deference, basically because the law would view the business as a kind of de facto extension of the founding and owning family, and subject to the same “free exercise” protections as individuals in the family itself, regardless of the beliefs, values, and practices of the employees who work there. Moreover and in principle, this first tier could be "Balkanized" into segments of differing religious and ethical ideologies. The second tier would comprise publicly held and traded companies where such deference and such Burwell-like exemptions were not granted. In other words, the second tier of the two-tier economy would comprise the economy as it existed in all cases prior to Burwell. In a certain sense, this is not as much of a change as you might at first believe. Unless you are an employee who works under the terms of a very carefully crafted contract specifying the circumstances under which you can be fired, it is theoretically possible for your employer to fire you for virtually any reason whatsoever – even for, e.g., having the “wrong” campaign bumper sticker on your car, real-world instances of which do exist -- except for reasons explicitly covered by EEO legislation. (E.g., you cannot be fired on the basis of gender, for being of a certain ethnicity, for being of a certain religious belief – in some states, but only some, because of sexual orientation.) This issue is especially pertinent when you consider that all this is unfolding within the context of a society in which fewer and fewer workplaces are unionized, where fewer and fewer people are union members, and where conservative animus against unions shows no signs of abating anytime soon.
Between increasing globalization and decreasing unionization, Burwell is a wild card factor that may further complicate the prospects of the American worker.