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    Hobby Lobby is No Kid Stuff

    On a dreary Shabbat afternoon, I sat down and read the entirety of the much debated, applauded and excoriated Hobby Lobby Stores case. Since I support both freedom of religion and women’s health issues, it occurred to me that I could read the remarkably brilliant opinions of Justice Alito and Justice Ginsburg with complete objectivity.

    I preach to my friends, “just find the facts and allow the law to lead you to an unarguable judgment.” With that framework in mind, I sat down to read the opinions.

    If anyone thinks that law can be separated from sociology, philosophy, economics, and a half dozen or so other fields of endeavor, then I have some swamp land in Florida for those people at a great price.

    Justice Scalia is justifiably known as a master of simple, straightforward, logical reasoning. In my first reading of his opinion, I agreed with every word. Alito framed the issue in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) as to whether the Religious Freedom Restoration Act of 1993 permits the United States Department of Health and Human Services (HHS) to require that three closely held corporations provide health insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.

    A bit of history is in order, although it is probably less important than at first it appears. The backdrop of the RFRA is the Supreme Court’s decision in Employment Division Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which represented a major change in the way the Supreme Court looked at claims concerning the free exercise of religion under the First Amendment to the United States Constitution.

    Prior to Smith, the Supreme Court utilized a balancing test that examined whether challenged government action imposed a substantial burden on the practice of religion, and if it did, whether it was action which was needed to survey compelling governmental interest. In the leading pre- Smith case, Sherbert v. Verner, 374 U.S. 398 (1972), the Supreme Court of the United States held that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits.

    I remember Smith well. It was shocking to me. Smith rejected the balancing test utilized in Sherbert. In Smith, two members of the Native American Church were fired for using Peyote for sacramental purposes. They filed for unemployment benefits, but the State of Oregon rejected their claims saying that Peyote use was a crime. The Oregon Supreme Court, applying the Sherbert rationale, decided that the denial of benefits violated the Free Exercise Clause of the United States Constitution.

    Smith threw out the Sherbert test because it feared the use of religious exemptions from specific obligations in many and varied situations. Smith taught that under the First Amendment, “Neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U.S. 507 (1997).

    Congress, upset by the Smith decision and seeking to advance the cause of American minorities, especially with use of “harmless drugs,” enacted the RFRA. Under the new law, if the government substantially burdens a person’s exercise of religion, under the Act, the person is entitled to an exemption unless the government demonstrates that the burden (1) is in furtherance of a compelling government interest and (2) is the least restrictive means of furthering that compelling government interest.

    Justice Scalia wandered into the thicket of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which amended the RFRA in connection with the definition of “exercise of religion.” The discussion adds little to the opinion, except to suggest that Congress’s reversal of Smith was further broadened by Congress when it passed the RLUIPA, a relatively unconvincing argument.

    Enter HHS regulations promulgated pursuant to the Patient Protection and Affordable Care Act of 2010. Unless an exception applies, the ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost of sharing requirements.” Guidelines require that non-exempt employees provide coverage without cost sharing of approved contraceptive methods, sterilization procedures, and patient education and counseling. Four of the methods may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Exemptions from the contraceptive mandate for “religious employers” were created. The category generally encompassed religious organizations. Religious nonprofits would not have to offer the coverage which might be inconsistent with their religious tenets.

    Other exemptions from the contraceptive coverage were grandfathered plans and firms that do not have to provide coverage at all because they employed fewer than 50 employees. Over one-third of the 149 million non-elderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013, and firms that do not have to provide coverage at all employ 34 million workers.

    The Hahn’s are devout Mennonites who own Conestoga Wood Specialties. The company has 950 employees and is organized under Pennsylvania law as a for-profit corporation. David and Barbara Green are Christians who own two family businesses, one of which is a nationwide chain with the prosaic name of “Hobby Lobby.” Hobby Lobby has more than 13,000 employees and is a for-profit corporation under Oklahoma law.

    The owners of these businesses object to providing health insurance for their employees which contain contraceptive coverage as a matter of religious filiation.

    Justice Alito rests his argument on a slim read. In Braunfeld v. Brown, 366 U.S. 599 (1961), a plurality opinion, five Orthodox Jewish merchants who ran small retail businesses in Philadelphia challenged Pennsylvania’s Sunday closing laws, a violation of their Free Exercise of religion. The merchants closed their shops on Saturday, and were also required to remain closed on Sunday. While the court entertained the claim, it decided that it was not a violation of the Free Exercise clause of the First Amendment to the United States Constitution to require these merchants to remain closed on Sunday.

    In view of the fact that the Brown court was willing to hear the claim of the Jewish merchants, who were effectively put out of business because of the government restriction on Sunday opening, Judge Alito reasoned that the Hahns and the Greens had a right to exercise their for-profit corporations’ religious views. Corporations are considered “persons” with religious liberty based upon the dictionary definition of the word “person.” Sweeping aside the corporate form, the majority of the court determined that corporations act through their owners and the owners’ religious rights were substantially burdened by the contraceptive requirement in health care coverage provided for the owners’ employees.

    Alito is enough of an intellect to have been nervous about the lack of precedent in his reasoning, and he therefore retreats into the safe harbor of claiming that if nonprofit religious institutions have employees who can obtain contraceptive coverage, then so can the employees of the for-profits. Doubtless, the Hahns and the Greens are sincere in their belief that providing the coverage demanded by the HHS regulations might require the destruction of an embryo in a way that makes it immoral for them to provide the coverage. The court noted that this is an important belief by the individuals who control their companies with absolute authority.

    Justice Alito also dispatches a line of cases which rejected the argument that the use of general tax revenue to subsidize the secular activities of religious institutions violates the Free Exercise Clause. The HHS contraceptive mandate imposes a substantial burden on the exercise of religion, wrote the Justice, thus invoking the question as to whether the intrusion was in furtherance of a governmental interest and whether the government regulation was the least restrictive means of furthering that compelling government interest.

    Remarkably, the Justice reasoned that the government could simply assume the cost of providing the four contraceptives to women who are unable to obtain them under their health insurance policies due to their employers’ religious objections. The Judge was not able to know the cost of that, nor whether the employer would object to their employees’ obtaining contraceptive coverage through the government. Since the cost to the government of health care will be $1.3 trillion, Justice Alito did not believe it would add much more of a burden to the taxpayers simply to have the rest of us pay where the owners of businesses did not want to cover contraception based upon religious objections.

    Nervous at the apparent reach of the decision, Justice Alito wrote that the decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employee’s religious beliefs. Some religions oppose immunizations, blood transfusions, and any health care at all. The Justice’s distinguishing between contraceptive coverage and other religious objections to health care was founded on the shoals of poor analogy.

    The most comforting component of the Justice’s reasoning is that since religious nonprofits are able to obtain contraceptive health care coverage for their employees, for-profits should be able to do that as well. Simply stated, where a religious nonprofit objects to contraceptive coverage, the insurance company picks up the tab and the religious institution is relieved of the burden. Justice Alito suggests the same remedy for objecting for-profits.

    Justice Kennedy, frequently a swing vote on the court, made a salient point. Where an accommodation may be made to the employers without imposition of a whole new program or burden on the government, such a route should be taken, rather than trampling on the religious objections of private individuals or their corporations.

    The dissent by Justice Ginsburg initiates with overstatement and hyperbole that unfortunately undercut her tight logic and fidelity to precedent. Ginsburg charged that any commercial enterprise will now be able to opt out of any law, except tax laws, that they judge incompatible with their sincerely held religious beliefs. That absolutely is not the case.

    Ginsburg makes a compelling and heart-wrenching appeal for the proposition that women’s health care has been long neglected and that the purpose of the legislation and regulation is to assure a healthy and safe population of working women. However, it is Ginsburg’s attention to detail beginning with Part II of her opinion which is most compelling. Corporations are not people. They do not have hearts or heads, but rather only pocketbooks. The people who run corporations, even close corporations, may be sincere and religious but what they do affects the lives and health of their employees.

    The quintessential difference between Alito and Ginsburg pertains to the juxtaposition of the employee and the employer. In Ginsburg’s view, the employer can think whatever he or she wants and their sincere beliefs should be respected, but when they employ more than 50 people in a for-profit enterprise they become subject to the laws governing the health and welfare of their employees regardless of their sincerely held religious views. Employers of big corporations and small ones have all kinds of views on a variety of subjects. Some of those views are religious, while others are political and socioeconomic. The Supreme Court of the United States has never invalidated employee benefits packages because an employee had a religious discomfort with a government requirement.

    Justice Ginsburg is correct that the logic of the majority will be equally applicable to large corporations as the small ones and to a great variety of religious and other First Amendment views.

    What will happen when the owner of a business claims that it violates his or her religious beliefs even to request an exemption from the contraceptive health insurance coverage? That was not made clear in the opinion. However, an order in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) cast grave doubt on the sincerity of the majority opinion offered by Scalia. The majority of justices in Wheaton College, following Hobby Lobby, granted an injunction to the college which did not want to file the application exemption form with respect to the contraceptive coverage. In providing the extraordinary relief, the majority merely instructed the college to inform the Secretary of Health and Human Services in writing that it is a non-profit organization which holds itself out as religious and has religious objections to providing coverage for contraceptive services. A majority took the extraordinary step of prohibiting the government from requiring a simple exemption form to be filed by the college.

    Justices Sotomayor, Ginsburg and Kagan quickly jumped on this decision, rightly seeing it as inconsistent with the majority opinion in Hobby Lobby. The sincerity of Wheaton’s belief is not the issue, wrote the dissenters. Respect for religious faith is not at issue. The question is whether the objection that Wheaton College had to filing a form is so extraordinary as to require Supreme Court intervention.

    The battle going on within the Supreme Court is one between religious freedom utilized as a sword rather than a shield to strike down government action deemed objectionable by the majority of the Supreme Court. There traditionally has been a distinction between neutral regulation which may impact someone’s religious beliefs as opposed to government regulation which prevents the free exercise of one’s religious rights.

    I take strong objection to the opinions refusing to strike down Sunday closing laws. Government respect for individual religious practices has been lax at best, and the Supreme Court has been tepid in supporting those rights. The reasoning of Justice Alito is that individual rights and liberties, even expressed by a corporation, must be protected. However, where straightforward government programs are held hostage to conscientious objection, the delicate balance between individual rights and the orderly maintenance of our economic system is at risk.

    Behind the Supreme Court debate in Hobby Lobby is the continuing percolating debate over abortion. The decision posits birth control or women’s health concerns against right to life issues. A strong minority on the court stands proudly behind women’s health and right to choose issues. That great divide is evident in the Hobby Lobby decision.

    The Supreme Court majority, I would predict, will quickly distinguish their opinion when a host of other religious objections are raised to government regulation and interference. It will be interesting to see whether outside of the contraception issue, Justice Alito and his supporters will be as vigorous at enforcing the civil rights and liberties of those who raise issues unrelated to the long-simmering abortion controversy in this country.

    Clifford A. Rieders, Esquire
    Rieders, Travis, Humphrey,
    Waters & Dohrmann
    161 West Third Street
    Williamsport , PA 17701
    (570) 323-8711 (telephone)
    (570) 323-4192 (facsimile)

    Cliff Rieders, who practices law in Williamsport, is Past President of the Pennsylvania Trial Lawyers Association and a member of the Pennsylvania Patient Safety Authority. None of the opinions expressed necessarily represent the views of these organizations.

    Our Legal Team

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