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June 30, 2014

Hobby Lobby, Turnabout, and the Notion of Fair Play

Be careful what grounds you base your argument upon, because that argument may one day be used in ways you don't like:

When I was in law school, the free expression clause of the First Amendment was still the darling of the left. It had been used by the Supreme Court to strike down laws restricting political dissent, which was almost always political dissent from the left. It was also used to relax artistic censorship. Liberals loved all of this. But in a brilliant bit of constitutional jujitsu, the Republicans on the court have turned the First Amendment on its head.

Hobby Lobby represents a new legal threat to liberal values. Now the challenge comes not from the free speech clause of the First Amendment, but from the clause providing for free exercise of religion—although in this specific case, technically from the Religious Freedom Restoration Act, as I mentioned, which was designed to rejuvenate the free exercise clause in the early 1990s after the Supreme Court eviscerated it. The idea is that religious people should be able to challenge statutes that “burden” their religious practices. Typically, those challenges come from the right. In Hobby Lobby, the owners of the craft-store company object, based on their Christian beliefs, to certain forms of contraceptives. Other challenges come from people who don’t want to serve gay people or facilitate gay marriages. It is not hard to imagine challenges from religious people with traditional notions of the role of women. Indeed, the whole edifice of individual rights erected from the 1950s through the 1970s could be challenged by a wave of religious rights proponents who want nothing to do with the people and practices that liberals have championed.

Satisfyingly for them, conservative religious people can mount their challenges by drawing on the theory that lay behind the liberal victories. Liberals argued that the Supreme Court should enforce the rights of racial minorities, political dissenters, accused criminals, and gays and lesbians because these groups were “discrete and insular minorities” that were outvoted again and again in our majoritarian political process. These court victories also protected religious dissenters, but mainstream religious beliefs did not receive the same level of protection, because they were held by the majority, who could protect themselves at the polls.

But as the country has become more secular in recent years, it is increasingly possible to see conservative religious people as a beleaguered minority, at least in some places. Their groups are small enough to be outvoted but large enough to bring countless legal challenges. Religious objections to gay marriage are increasingly seen as out of the mainstream, as outlandish as the speech and activities of dissenters who liberals used to believe needed protection. So it is natural for religious people to argue that they deserve constitutional protection as well, and that for their sake, laws that promote contraceptives, gay marriage, and the like must be narrowed or eliminated.

A side effect of this trend is that cases increasingly involve a conflict between two different rights, or conception of rights, rather than a conflict between a right and a government interest. In old-style cases, it was natural to think that the rights of political dissenters, or racial minorities, or criminal defendants, were pitted against the government interest in public order. The rhetoric of rights promoted sympathy for the individual being crushed by the governmental boot. But conservatives have come up with a different framing. Property owners have rights to property. Religious people have rights to religious freedom. Rich people have rights to speak and spend their money getting other people to listen. Victims have rights not to be preyed upon by criminals. A Supreme Court devoted to enforcing rights of all kinds becomes the ultimate arbiter of political disagreement.

The Editorial Staff have mostly stayed away from this issue, in large part because we find the argument that being forced to offer a health care plan that includes medications you wouldn't take yourself because your religion considers their use to be sinful is deeply unpersuasive to us. The causal connection between an employer's personal decision not to use contraception and being morally bound not to offer employees a benefit that is viewed by pretty much everyone as part of the total compensation package because they might use it in a way that conflicts with their employer's religious beliefs is just too flawed a general standard for us to support.

That said, arguing that a law already on the books requires stronger grounds than the Obama administration has provided before ordering individuals and companies to do things that conflict with their religious beliefs seems like a sound basis for today's ruling. The strongest argument for Hobby Lobby's case is that the contraception mandate was not the least restrictive means that could have been used to achieve the government's objective.

One wonders though, how the religious freedom argument will be used in future cases that conservatives find far less sympathetic? Should Muslims be able to sue to strike down or exempt themselves from laws they feel unfairly burden their religious freedoms? Are we willing to protect all religious freedoms, regardless of the freedom being asserted? How about Satanists? We doubt this is a recipe for sound public policy.

Discuss amongst your ownselves, knuckle dragging haters :p

Update: Here's a nice, succinct summary of the decision:

...in Burwell v. Hobby Lobby, the court held 5-4 that closely held corporations cannot be required to provide coverage for contraception services for their employees if the owners object to such coverage on religious grounds. Contrary to some early reports, this decision is based on the Religious Freedom Restoration Act (RFRA), and not the First Amendment. (In other words, this is a statutory decision, not a constitutional one.) According to the court the contraception coverage mandate is not the least restrictive means for ensuring access to contraception. In order to reach this conclusion, the court concluded that the RFRA applies to closely held corporations. Justice Alito wrote this opinion, as well. Justice Anthony Kennedy wrote a concurring opinion. Justice Ruth Bader Ginsburg wrote the primary dissent, joined by Justice Sonia Sotomayor in full and Justices Kagan and Stephen Breyer in part. Justices Kagan and Breyer wrote separately to note that they saw no need to decide whether for-profit corporations or their owners could bring claims under RFRA.

Posted by Cassandra at June 30, 2014 12:33 PM

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Comments

So, an individual or group of individuals running a for-profit enterprise should be - in their personal religious view - complicit in abortion? There were only 4 contraceptives the Green family objected to: those that can cause abortion. I'm sorry, but I see no compelling government interest to force them to pay for it. They weren't saying they wanted to forbid their employees (and their dependent family members) for using these four forms of contraception. They just didn't want to be forced to pay for it. Any woman who works for Hobby Lobby and wants to use one of these 4 contraceptives can still get it - they just can't make their employer pay for it.

I am Catholic and I am against contraception in general (my husband and I practice NPF - just requires a little work charting and a little self-control), so I'm not thrilled with them paying for those medications that are "just" contraceptives and not also abortifacients. But I see too much encroachment on religious freedom in this country these days. Government mandates on providing contraceptions and abortifacients. Forcing small business owners who object to gay marriage to contribute to the celebration of such an event or be sued and fined out of business. Pushing of no religious expression whatsoever in the public square. Telling students they cannot talk about God at school functions (whether it be in a graduation speech or reading the Bible in private reading time). I am happy with this decision, narrow as it is. We need the push-back on these encroachments.

I do understand there can be limits on the free expression of religion. It is against the public interest, for example, to all human sacrifice, as has been practiced in religion. I know religion was cited for disallowing interracial marriage. But I don't see the compelling government interest WRT contraception.

Posted by: Miss Ladybug at June 30, 2014 03:14 PM

Offensive practices of equally offensive 'religions' that would claim religious freedom protections would not be a problem for a country steeped in the Judeo/Christian ethic; had retained its moral compass and common sense; and had not given itself over to relying on Potomac oracles who understand the meaning and essence of a thing by divinations of emanations from penumbrae from a living, morphing document. So juridical decisions in the future are hardly a problem – and certainly not foremost in what ails us and what may perturb us in the future. We are not only not in Kansas any more, we’re not even close to America.

Posted by: George Pal at June 30, 2014 03:34 PM

Maybe I'm just not hitting on all cylinders today (or maybe I don't know enough about other religions) but I'm having a hard time coming up with an analogous case that would impact Muslims (or Satanists) in a similar way.

Posted by: Elise at June 30, 2014 04:51 PM

I don't see the compelling government interest WRT contraception.

FWIW, I don't either :p Especially since the Unaffordable Care Act doesn't even cover male birth control. Seems almost ... discriminatory.

There are lots of things well short of human sacrifice that could conceivably fall under the free exercise of religion, though. FGM, for instance (circumcision has both cultural and religious roots too - why the exception for one religion but not another?).

Denying a critically ill/injured child to have medical care is another. That can easily result in death just like human sacrifice does, and it's a really tough moral problem.

What is (or is not) viewed as "against the public interest" isn't always as bright a line as we'd like to think. I'm with you that things have gone too far in the "freedom from religion" vs freedom OF religion tug of war. I still think it's an interesting question: are we willing to extend that same religious freedom exemption to practices we abhor (such as your very good example about miscegenation laws)? Or prohibiting women from doing all sorts of things few of us would have a problem with today? Working outside the home? Owning property? Going outside without wearing a veil/abaya/chador?

This ruling is very narrow. I'm talking about the broader religious freedom arguments.

If everyone is searched in an airport security line, do individuals have an enforceable right to refuse to be searched (or even have their faces compared to their photo IDs) because doing so would violate their religious beliefs?

Just because I didn't find the broad arguments some folks made for the religious exemption persuasive doesn't mean I don't think religious freedom is important or worth protecting. It clearly is.

If my local CVS stopped selling birth control pills tomorrow (note: I don't need them), I don't think there's a civil rights case there. But if the state I live in suddenly criminalized all forms of birth control (even for married couples) citing religious freedom, I'm pretty sure I'd have a major problem with that even though I don't need it anymore.

Posted by: Cassandra at June 30, 2014 05:02 PM

The Federal Government had already stepped outside of its scope when it decided to compel people to buy insurance.

The government cannot compel people to do something, to enter into a contract, that they do not wish to voluntarily do in the normal course of their lives. Thus even this small pushback is something of a relief, but hardly the end of Federal tyranny.

Driving a car is not necessarily a part of everyone's life, so requiring a car owner/driver to buy car insurance (state law) is not an all encompassing compulsive requirement by the government.

Posted by: Don Brouhaha at June 30, 2014 05:04 PM

Don, I agree with pretty much everything you just said (OK... typed!) but that's really water under the bridge wrt to this ruling (which did nothing to challenge the power of the government to compel us to buy insurance). All it did was exempt some people from a small part of the larger statute, leaving the part you cite intact.

The ruling asserts the right of religious people who think a statute unduly burdens their religious freedom to challenge or exempt themselves from that statute. I haven't read the entire opinion yet, but I don't think it asserts that right on Constitutional grounds, but rather on the basis that the ACA violates an earlier religious liberty statute.

A lot of folks are making the larger argument (the Constitutional one). I suppose you could argue that it doesn't matter whether the asserted right is grounded in the Constitution or in an earlier federal statute. For the purposes of this discussion, I'm not sure it matters.

The point I'm making is that there's a difference between asserting a general right to exempt oneself from statutes you view as infringing on religious freedom and asserting one that just happens to create an exemption you believe is justified. I'm not sure how one grants a general religious exemption and then denies it to some religions whilst granting it to others.

In this case, I think the ACA was screwed up from the get go and should be struck down on the grounds Don cites. I think that's the better (less dangerous) argument.

Posted by: Cassandra at June 30, 2014 05:34 PM

The Muslims will probably be citing free association as well as free exercise, but I'm not sure they aren't right. Why shouldn't they be able to -- say -- object to a clause obligating them to provide alcohol (for medicinal purposes, of course) at their own expense to their Muslim employees? Prescriptions for medicinal whiskey were very common during Prohibition, after all.

Posted by: Grim at June 30, 2014 05:50 PM

OK, now that I've had a moment (no more) to peruse the RFRA, here's what it says:

(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial relief
A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

Consider, for instance, the eerily similar claim of a Quaker woman who claimed that forcing her to pay federal taxes was tantamount to forcing her to violate her religious beliefs against war because part of her money went to supporting DoD.

Denied, on the basis that mandatory payment of taxes (whether or not tax funds are used to support something against your religion) was in fact a compelling state interest.

To use the federal RFRA, you need to be able to claim that some federal statute substantially burdens your religious freedom. Personally, I'm not convinced that was the case here. But that turns out not to matter since the government was unable to prove that the contraception mandate was the least burdensome way to achieve their asserted interest in giving women (but not men) free contraception :p

The Muslims will probably be citing free association as well as free exercise, but I'm not sure they aren't right. Why shouldn't they be able to -- say -- object to a clause obligating them to provide alcohol (for medicinal purposes, of course) at their own expense to their Muslim employees?

The better example would be: do you think Jehovah's Witnesses should be able to disallow coverage of blood transfusions on employees' health plans?

Should Christian Scientists be exempted entirely from the ACA (they don't believe in medical treatment at all).

FWIW, I'm not sure I have a problem with either of these scenarios since I already don't believe the government should be able to force *any* employer to provide health insurance. But in a world where that's already the law, working for such an employer means putting your family at risk.

There are some cases where parents have refused medical care to their critically sick children and the child has died after lingering in agony.

My natural sympathies are with the parents, but that's a scenario that troubles me greatly. It seems to me that in cases like that, we generally aren't intellectually or morally consistent (IOW, we can't name a principle we're willing to apply when we dislike the outcome).

Posted by: Cassandra at June 30, 2014 06:32 PM

I would answer "yes" to both questions - the one about Jehovah's Witnesses and the one about Christian Scientists. And I don't agree that working for such an employer puts ones family at risk. Health care is available without insurance and insurance is available without an employer (especially under ACA).

I do not, however, always support the right of parents to deny medical care to a critically sick child. The child is a separate individual and the parents' rights do not extend to causing or allowing the child's death. If the denial of care is because the chance of treatment being successful is very slight and the treatment is painful or difficult, that seems to me to be a reasonable decision. If the child has pneumonia and the parents are refusing to let the child have antibiotics due to their religious beliefs, that seems to me to be unreasonable.

Posted by: Elise at June 30, 2014 06:42 PM

I must be doing it wrong. What I see is a really narrow decision: If the government can find a way to avoid imposing the law's mandate on non-profit corporations that raise religious objections, then forcing the mandate on for-profit corporations that raise similar objections cannot possibly be the "least restrictive" means available to the government to accomplish the aims of the law. In other words: "You can't make an exception to the law, and then say there can be no exceptions to the law, you dopes."

The Washington Post moronically informs me that the opinion "only mentions 'women' 13 times." It didn't need to, not once.

Posted by: spd rdr at June 30, 2014 06:48 PM

I think Elise is right about the religious employers. In addition to those private choices, if the government really must provide 'free' whatever -- why birth control and not, say, vaccinations, where there is surely a stronger argument? -- it can pay for them out of the tax system.

As for the Quakers, I've always wanted to try out the following system:

1) A balanced budget amendment, combined with,

2) An opt-in tax system, whereby your tax bill is broken out by how much of what you pay will go to each department, and you opt in to the things you value enough to pay for.

If the government can't raise the money, it can't go into debt. I suspect things like the Marine Corps would be easy to fund, while things like the EPA might very well find themselves out of business.

I think you could pay for free vaccinations that way, too, a few objectors notwithstanding.

Posted by: Grim at June 30, 2014 06:57 PM

...What I see is a really narrow decision: If the government can find a way to avoid imposing the law's mandate on non-profit corporations that raise religious objections, then forcing the mandate on for-profit corporations that raise similar objections cannot possibly be the "least restrictive" means available to the government to accomplish the aims of the law. In other words: "You can't make an exception to the law, and then say there can be no exceptions to the law, you dopes."

Maybe that's why you're an immensely powerful attorney and I'm just a lowly tech wench :p I didn't get the nuance about for profit vs. nonprofits because I haven't had much time to read today. But I did get the "least restrictive means" part. And I'm not sure you even need the non-profit vs for-profit thing to get there. Maybe you do, but if this is such a compelling human right, why not just subsidize it directly from federal tax dollars?

The Washington Post moronically informs me that the opinion "only mentions 'women' 13 times." It didn't need to, not once.

I'm pretty much categorically against any argument that mentions women specifically. Which pretty much causes me to dismiss the usual idiotic #WARONWOMENOMGCANUBELIEVE"EQUALITY"DOESN'T MEAN"IGETSPECIALPRIVILEGESTHATMENDON'T"???? blather.


Posted by: Cassandra at June 30, 2014 07:48 PM

I do not, however, always support the right of parents to deny medical care to a critically sick child. The child is a separate individual and the parents' rights do not extend to causing or allowing the child's death. If the denial of care is because the chance of treatment being successful is very slight and the treatment is painful or difficult, that seems to me to be a reasonable decision. If the child has pneumonia and the parents are refusing to let the child have antibiotics due to their religious beliefs, that seems to me to be unreasonable.

That's pretty much where I come down: your right to religious freedom is curtailed when it conflicts with the more fundamental rights of other people to life, liberty, etc. Having to pay for your own freaking birth control doesn't meet that test.

Posted by: Cassandra at June 30, 2014 07:50 PM

I'm sorry, I find the whole thing humorous after a fashion.

Congress decided health insurance would include contraceptives, and then subsequently decreed that companies with more than a certain number of employees must purchase it.

It probably never crossed their narrow minds that some employers might strenuously object on religious grounds. Maybe some of them have never heard of the Catholic Church.

The moral of the story is: you might not take someone else's religious beliefs seriously, but they do.

Posted by: Allen at June 30, 2014 08:23 PM

One wonders though, how the religious freedom argument will be used in future cases that conservatives find far less sympathetic?

A clue might be seen in cases where it already has. In Thomas v. Review Board, for example, a state tried to deny someone unemployment benefits because he voluntarily quit work when he was transferred to a section that made tank parts. He said his religious convictions (he was a Jehovah's Witness) forbade him to participate in making weapons; the Supreme Court held that the state couldn't withhold the benefits....because his decision was based on religion. (The fact that his view isn't universal among JW's didn't make the slightest difference.)

Posted by: Joseph W. at June 30, 2014 08:56 PM

There is, I think, a difference between male and female circumcision: circumcising a male may have religious origins, but I think those origins also come from hygiene. It's easier to keep things clean without a flap of skin, especially back when it was hard to keep clean in general. FGM (female "circumcision") may also have religious origins, but unlike the pro-hygiene/healthful "side effects" of male circumcision, FGM, actually CAUSES health problems and is intended to keep women chaste and to make them not get pleasure out of intercourse. The "compelling government interest" is this case is to not cause the victims of FGM the health problems (and pain) associated with it.

Posted by: Miss Ladybug at June 30, 2014 09:24 PM

I think millions of dollars in fines - annually - for either not providing the offending contraception, or, alternately, not providing employees with medical insurance *IS* a substantial burden to practicing ones religion.

Posted by: Miss Ladybug at June 30, 2014 09:27 PM

In this case, I think the ACA was screwed up from the get go and should be struck down on the grounds Don cites. I think that's the better (less dangerous) argument.

That ship sailed when Roberts inexplicably called the fine a tax, thus calling it "constitutional". Taxes are supposed to originate in the House. The bill number of the ACA may have come from the House, but when the Senate "amends" the bill by completely stripping it of all the original language and replacing it with the ACA, I don't think that's what the Founders had in mind. Is someone challenging the ACA on this Origination Clause issue? I hope so...

Posted by: Miss Ladybug at June 30, 2014 09:32 PM

Yes Miss Ladybug, that ship has sailed. But in the future, the ACA can be further reduced in its desparate impacts by again looking at how this "law" continously conflicts with rights of the individual.

This is only a small pushback, ie, in terms of "limiting" exceptions.

What the Obama Administration would like to do with discretionary regulation is a de facto "writ of mandamus", in terms of using the law to target individuals and dis-favored groups, retroactively. This is of a piece in using the IRS to attack political opposition to the Democrats. This is obscenely un-Constitutional, and will continue, in unchallenged.

Hence, this single pushback by the SCOTUS has a wider meaning and is why the Left is in full screaming mode over this. There remains the possibility that ultimately a proper application of the Constitution will strip the ACA naked.

Posted by: Don Brouhaha at June 30, 2014 09:56 PM

Joseph, thanks for the example. I suspect there are plenty more - haven't really researched it though :)

...unlike the pro-hygiene/healthful "side effects" of male circumcision, FGM, actually CAUSES health problems and is intended to keep women chaste and to make them not get pleasure out of intercourse. The "compelling government interest" is this case is to not cause the victims of FGM the health problems (and pain) associated with it.

That's a fairly reasonable argument, but the MRA movement have been arguing that male circumcision causes great pain and has side effects, too. I agree with you, but don't think the line is all that clear as the very same arguments could be (and *are* being) made against allowing male circumcision.

There remains the possibility that ultimately a proper application of the Constitution will strip the ACA naked.

I agree this is a strong possibility (though it's by no means certain). It takes time for people to fully understand all the nuances of an issue like this and I think many of the arguments now being advanced are promising. It's up to the Courts to reverse what Congress has done, and overall I prefer the Constitutional arguments to ones like this that are based on a statute because this decision is very narrow and really doesn't advance the position that the ACA is impermissible under the Constitution.

Posted by: Cassandra at July 1, 2014 07:20 AM

That's pretty much where I come down: your right to religious freedom is curtailed when it conflicts with the more fundamental rights of other people to life, liberty, etc. Having to pay for your own freaking birth control doesn't meet that test.

Eeeeeeeeeeeeeeexactly!

Posted by: MikeD at July 1, 2014 09:07 AM

Yes, MLB, there is just such a challenge wending it's way up the chain as we type. Alas, I'm not at my own computer at the time, so I can't pull up the bookmark, and, as the reason why I'm not currently with my laptop includes sitting in a pool in 90 degree weather drinking beer and apple moonshine, it's not likely I'm going to remember the link anytime soon.
But it is happening.
0>;~]

Posted by: DL Sly at July 2, 2014 03:04 PM

But I'm pretty sure the Powerline guys are covering it. You can check over there.

Posted by: DL Sly at July 2, 2014 03:05 PM

Sly - I wonder how many times the Senate has tacked a tax onto a House bill before Obamacare and no one really noticed or seemed to care if they did...

Posted by: Miss Ladybug at July 2, 2014 04:11 PM

My understanding is that it's rather common.

Posted by: Yu-Ain Gonnano at July 2, 2014 04:49 PM

They sure do find was to subvert the Constitution, don't they?

Posted by: Miss Ladybug at July 2, 2014 05:14 PM

Almost like that's what they were sent there for...

Posted by: DL Sly at July 2, 2014 05:38 PM

Something I just read at Breitbart linked to this regarding the Origination Clause challenge: http://www.pacificlegal.org/cases/Sissel-3-1374

Posted by: Miss Ladybug at July 3, 2014 12:19 AM

Hi Elise,
' . . . but I'm having a hard time coming up with an analogous case that would impact Muslims (or Satanists) in a similar way.'

There already are lots if conflicts between local & state laws wrt to Muslim practices, the most simple if which is that Muslim taxi drivers in some cities refuse rides to those carrying alcohol (this came up w folks at airports w duty free bags of booze), or those obviously drunk. While that may offend their religious teaching, it also plainl violates many local ordnance a requiring cabbies to transport w/o discrimination.

Best Regards,

Posted by: CAPT Mike at July 6, 2014 03:48 AM

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