Thursday, August 5

Womb With a View Redux — Part 1

skepticIn the month or so since the Supreme Court rendered its opinion in the case of Burwell v. Hobby Lobby, I have decided that the Hobby Lobby decision is easy to hate in the short-term but easy to … if not love, exactly … at least easy to tolerate in the long term. It really is not as bad as you perhaps have heard. I say this for several different, but related reasons that make snap judgments easy but, as is often the case, wrong in some important respects. These reasons include the history of the Federal statute, the Religious Freedom Restoration Act (RFRA, usually pronounced riff-ra), according to which Hobby Lobby was decided; the pre-RFRA case law pertaining to the granting of religious exemptions to Federal (and State, though not all States have RFRAs) laws; the specific language of RFRA concerning the burden imposed on the Government to demonstrate both “compelling governmental interest” and “least restrictive means”; and the fact that the Hobby Lobby ruling was based on a Federal statute and not the Constitution, in particular, not on either of the “religion” clauses of the First Amendment. LI-07-Hobby-Lobby

We need to dispose of one popular objection at the outset: that corporations are not people, and therefore not possessed of First Amendment religious rights. One of the customary critiques of Hobby Lobby that often emanate from the left and from progressives is the superficially plausible, but ultimately untenable, assertion that it is absurd to attribute religious sentiments to corporations. Corporations, it is argued, are not people – Mitt Romney’s iconic contrary statement notwithstanding – and it is absurd, so the argument goes, to attribute any characteristic of humanity to them. In some obvious sense, that is certainly true. Corporations qua corporations do not worship. Nor do they pray. Nor do they read the Qur’an or the Sutras or the Bible or the Torah or the Upanishads or … etc. … or even Mad magazine. All that is true. Quoting the Third Circuit’s opinion that Conestoga Wood Products, being a for-profit corporation within the meaning of RFRA, was not a person and therefore lacked standing to sue, Justice Alito, writing for the majority in Hobby Lobby, asserted:

“General business corporations do not, separate and apart from the actions and belief systems of their individual owners or employees, exercise religion. They do not pray, worship, or observe sacraments or take other religiously motivated actions separate and apart from the intention and direction of their individual actors”. 

All of this is true – but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.

So it is equally true that corporations are formed, owned, and operated by human beings who do engage in all those activities, and who do have religious rights under the First Amendment. As was argued in the Hobby Lobby opinion itself

[T]he purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.

Besides, if we are going to deny that corporations share any of the attributes of being human, then, to be consistent, we are going to have to deny that corporations are subject to moral imperatives. But then it would make no sense to exhort corporations, e.g., to observe standards of ethical behavior in, say, enlisting foreign labor to make sneakers, or drilling for oil in the Gulf of Mexico, etc. If the response is that corporations, through their human officers, make all those decisions regarding corporate behavior, then we must admit that there is likewise nothing absurd about corporations, also through their human officers, engaging in religious activity. We cannot have it both ways. Nor can we cherry-pick. If attributing religious behavior to corporations is absurd, then so is attributing morality to them. cherry-picking

In fairness, it should be noted that, in the run-up to the Supreme Court’s hearing of Hobby Lobby and related cases (Conestoga and Mardel), two Federal Circuit Courts – the Third (which heard the case for Conestoga) and the Tenth Circuits – disagreed as to whether the respective corporations, qua corporations, had standing to sue under RFRA. The Supreme Court’s Burwell v. Hobby Lobby opinion cites both:

[T]he Third Circuit affirmed [the lack of standing decision of the District Court] in a divided opinion, holding that “for-profit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment.  

Basically, in order to have standing to sue, the corporation must be an injured party -- in this case, must possess "free exercise" rights that are being abridged -- which could not be the case if corporations were not people in any sense of the term.

(People familiar with the "standing" issues in Hobby Lobby will see that I am considerably skating over these issues in this discussion, simply because, in general, the technical "weeds" of standing are of jaw-dropping, drool-inducing levels of complexity.  Suffice to say that Hobby Lobby was a case involving a "closely held" corporation with very few stockholders, that the stockholders held pristinely unanimous religiously grounded opinions about the morality of abortion, and that the case involved an issue of fundamental rights:  free exercise of religion.  This entailed that Hobby Lobby could be granted "associational standing" whereby the corporation had religious rights identical to and coterminous with those of the individual stockholders.  For a fuller discussion, see Prof. Steven Willis's excellent discussion in the South Carolina Law Review of Autumn of 2013.)

And with regard to the Tenth Circuit’s decision:

Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses [Hobby Lobby and Mardel bookstores] are “persons” within the meaning of RFRA and therefore may bring suit under the law.  

The Supreme Court, in addition to citing the case of Braunfeld v. Brown as precedent, resolves the disagreement in favor of the Tenth Circuit by noting that “[b]y enacting RFRA, Congress went far beyond what this Court has held is constitutionally required” for the protection of rights under the “free exercise” clause of the First Amendment. (Braunfeld was a case in which the Supreme Court upheld the constitutionality of a law that mandated Sunday closing of businesses, even in light of the acknowledged burdening of Jewish business, despite the Jewish religious obligation to close on Saturday instead of Sunday:  Jewish businesses would have to close two consecutive days. The rationale for the opinion was that the Saturday closing law was of general applicability and involved no invidious discrimination against Jews or Jewish businesses. Nothing in the Braunfeld opinion pertained to a denial of standing because Braunfeld was a business.) Given the Braunfeld precedent, which pertained to a business, and the generous reading of the term “person” in the language of RFRA, the conclusion would seem to be warranted that, for purposes of the adjudication of “free exercise” claims, corporations do have rights under the “religion” clauses of the First Amendment.

This consideration immediately raises two issues: (1) If a corporation’s religious convictions – whatever that may turn out to mean – may arguably exempt it, i.e., its owners, from the requirements of the law, how far would such exemptions extend? and (2) What part does RFRA play in responding to (1)? First, a history lesson. From around 1960 to 1990, there existed a common-law presumption, comprising a number of Supreme Court decisions, e.g., Sherbert v. Verner and Wisconsin v. Yoder, that Federal laws, even laws of general applicability, that could inhibit religious observance, however unintentionally and indirectly, were subject to a “strict scrutiny” criterion that made it, not categorically impossible, but extremely difficult for any law curtailing anyone’s “free exercise” rights to pass constitutional muster. Then in 1990, the decision of Employment Division v. Smith denied members of the Native American Church an exemption from Oregon’s illegal-drug laws for the use of peyote in their rituals. This decision reversed the common-law trend of the previous 30 years by removing the presumption of constitutionally grounded religious exemptions. Even after Smith, exemptions could still be granted, but there was no presumption of a constitutional right to such, provided that the law in question was of general applicability and evinced no invidious bias against the group requesting the exemption.  The reaction to Smith in Congress was, by congressional standards, immediate and swift: in 1993, Congress passed the Religious Freedom Restoration Act (unanimously in the House; 97-3 in the Senate), which explicitly encoded into the law the previous constitutionally grounded common-law presumption of religiously based exemptions from Federal laws. The relevant language in RFRA is as follows:

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person … is the least restrictive means of furthering [a] compelling governmental interest.  

Given this language, the burden of proof is on the Government to demonstrate that the proposed “free exercise” restriction of religious liberty furthers a “compelling governmental interest” and that the proposed restriction is the “least restrictive means” of furthering that interest. There is almost nothing new here. (I say “almost” because of a slight but potentially important qualification described below.) The relevant language of RFRA amounts to only an explicit codification of the previously implicit common-law criteria that were employed to assess the constitutionality of proposed “free exercise” restrictions between 1960 and 1990 (the latter being the year when Smith was decided). (Congress subsequently attempted to mandate that, in assessing the constitutionality of any proposed “free exercise” restriction, Federal courts would be bound to a “strict scrutiny” standard of judicial review. However, the Supreme Court struck down this requirement as violative of separation of powers doctrine.) If a proposed “free exercise” restriction was judged constitutional (or unconstitutional) by the latter criteria, then that restriction would be judged constitutional (or unconstitutional) by the former.

The First Amendment
The First Amendment

There are some pseudo-problems with the ruling, and some genuine problems, too many of both types to deal with here. But I’ll deal with a couple of the more salient. First, the pseudo-problems:

o The pseudo-problem of the slippery slope back to the era of invidious discrimination: At risk of belaboring the point, I am at some pains to emphasize this “nothing-has-changed” aspect of RFRA because, in the wake of the Hobby Lobby decision, there was quite a bit of rhetoric in the media to the effect that religious convictions were being given unprecedented weight in assessing constitutionality. For example, apprehensions were expressed that landlords whose religious convictions in opposition to racial integration – “race-mixing” as it was called in the pre-civil-rights era – could use Hobby Lobby as a precedent to evade fair-housing ordinances that mandated impartiality as to race in the acquisition of housing; or that restaurant owners could, on religious grounds, refuse to racially integrate lunch counters; etc., etc. But asserting these “slippery slope” concerns was premature and misconceived. If the Government could assert and substantiate a “compelling interest” in mandating the integration of lunch counters, housing, etc., in pre-RFRA days, the same “compelling interest” justification would hold, post-RFRA. The only difference is that the “strict scrutiny” methodology, which was more or less sub rosa, in the former era has been rendered explicit today. Granted, race-related issues are now, 50 years after the Civil Rights Act of 1964, “settled law”, whereas, for example, issues of discrimination relating to, say, sexual orientation are in the process of “settling” and so are not yet “settled law” to the same extent. Consequently, a degree of sexual-orientation discrimination on the basis of religion might perhaps be constitutionally permissible in the post-RFRA era. But – again – this is not because of RFRA, but because legal prohibitions against sexual-orientation minorities on the basis of religion might still be permissible, e.g., not all States have EEO legislation prohibiting the firing of people on the basis of sexual orientation. The point is that whatever sexual-orientation discrimination might still be legally permitted today post-RFRA would have been permitted in the common-law Sherbert / Yoder regime pre-RFRA. (However ... the above comments refer only to the Hobby Lobby decision proper.  Shortly after that case was decided, the Supreme Court issued a ruling concerning the scope of the "self-certifying" exemption vis a vis Wheaton College that could considerably weaken the applicability of the above comments.  I discuss the potential implications of the Wheaton College decision in the final paragraph of part 2 of this post.) RFRA

o The pseudo-problem of the “burden” question  It has also been argued, e.g., in a piece in the LA Times, that granting Hobby Lobby (and the other two plaintiffs, Congestoga and Mardel) an exemption from the employer mandate places a burden on women in the companies who do not share the plaintiff families’ theological and moral convictions. The assumption in such cases seems to be that such burdening ipso facto invalidates the exemption. But it is not that easy. One can make a strong argument -- in some situations and in some cases -- that such burdening of rights – and not only religious rights – is constitutionally valid. Not all such burdens are. For example, when State legislatures pass voter identification laws that levy charges for various forms of identification on the indigent, or when they set polling place times during working hours that effectively bar the working poor from voting, etc., etc., such burdens may very well be invidious. But burdening per se is not. When the Nation had a draft, the draft laws granted conscientious-objector (CO) status to men who had religious and moral objections against all war. This exemption meant that, for each man granted a CO exemption from combat duty, a non-CO man had to take his place, and risk killing and being killed. This would certainly count as a “burden”.

The CO case as a source of (potentially ultimate!) burden is especially interesting, because, in his very useful and informative essay Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties, Eugene Volokh cites the case of Estate of Thornton v. Caldor as an example of a burdening of free exercise that the Court ruled unconstitutional, because it created a legal obligation on the part of nonbelievers as a consequence of believers’ observance of the Sabbath. Volokh even quotes Judge Learned Hand’s statement, in the case of Otten v. Baltimore & Ohio Railroad, quoted in Thornton, that “The First Amendment … gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities”. The point is that, if we are going to use the creation of a legal mandate for others to modify their conduct in order to conform to others’ religious obligations as an index of unconstitutional burdening, then Thornton would arguably imply that other men being obligated to serve to replace religiously motivated COs is of at least dubious constitutionality. The non-COs would have been subject to the draft, in any case, but would not have been obligated to report for combat duty, had not COs been granted an exemption. Volokh does not deal with this issue.

fBy the same token, though on a less drastic level, all taxpayers are burdened by the practice of granting tax exemptions to churches. All taxpayers pay a certain number of “delta dollars” to compensate for revenue the Government chooses to forego by not taxing religious institutions. So the key questions to ask is not Does the exemption (from the draft, from taxation, from the employer mandate, etc.) impose a burden on the non-exempt? Rather, the question to ask is Is the onerousness of the burden disproportionate to the achievement of the “compelling governmental interest” end-in-view? The answer to the latter question may be “No”. That is, the “compelling … interest” may be urgent enough to justify assigning it a priority higher than the “free exercise” rights of the group requesting the exemption. For example, in United States v. Lee, the Supreme Court agreed that requiring Amish craftsmen to pay Social Security / FICA taxes was indeed an onerous burden, especially in light of the religiously based Amish preference for “insulating” themselves from the surrounding community, but that the raising of revenue for the Government, in particular, for the Social Security system, was sufficiently exigent to take precedence over Amish religious principles. Not all burdens are created equal, and taking into account all the factors that are relevant to assessing the onerousness of the burden relative to the “compelling … interest” to be supported is an extremely complex undertaking.

The strongest claim for the burden imposed by Hobby Lobby being unconstitutional – keeping in mind the ambiguity arguably introduced by Thornton -- thus seems to turn on the question of obligation, in particular, on the question of whether the granting of an exemption to the employer mandate vis a vis the four contraceptive substances and devices creates among non-believers a legal obligation they would not otherwise incur. Following Thornton – cautiously! -- as our paradigm, the conclusion would be that the creation of such a de novo obligation would constitute a violation of the “establishment” clause of the First Amendment, because non-believers would be required to defer to believers’ religious principles and to modify their (the non-believers’) conduct. But this begs the question of whether, in fact, non-believing women employees of Hobby Lobby do, in fact, incur such an obligation as a result of the Hobby Lobby decision. While I certainly remain open to being convinced otherwise, it is difficult to see how such could be the case. I say this for two reasons:

  • There are 36 other substances / devices for contraception that were not part of the requested exemption, and that could be used in place of the 4 that were the basis of the suit.
  • The Court cited statements by the Department of Health and Human Services (HHS) itself in which HHS asserted that it had made alternatives available to non-profit organizations that dealt with the issues raised in the Hobby Lobby suit:

HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. … HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, an organization can self-certify that it opposes providing coverage for particular contraceptive services.

The point of both of the above is that the burdening issue is considerably mitigated by the existence of alternativesalternative methods / substances / devices for contraception, and alternative methods of payment that respect the religious convictions of the businesses’ owners while simultaneously incurring no additional cost to non-believers. Given that, the issue is not burdening but convenience. We will discuss the real problems with Burwell v. Hobby Lobby in part 2.

James R. Cowles


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