I usually use this blog to update family and friends about our daily life and show cute pictures of Caleb. I'm going to depart into the land of law with this post. The departure may seem wholly unrelated to domestic life, but when two lawyers get married, discussions of law and politics are a regular part of our day-to-day happenings. I still don't want to disappoint the grandmas in our lives, so here is a recent picture of our cutie pie before I jump into the law.
One of the skills my students learn in the
paralegal intro class I teach is how to brief a case. Case briefing is basically an exercise in legal reading comprehension and efficient writing. We usually brief Illinois appellate court decisions in class since they're relevant to my student in a jurisdictional sense and tend to be more manageable in length. I never assign U.S. Supreme Court cases. They're super interesting, but also 50-120 pages long, especially if you're going to read concurring and dissenting opinions as well as the majority decision. This is the same reason most people don't go to the primary source. It's much easier to have someone else tell you about it.
With all the press the recent Hobby Lobby case has received with varying reactions, I decided to read it myself. If I am going to read it, I might as well brief it. If I am going to brief it, I might as well share it.
Burwell v. Hobby Lobby Stores, Inc., No. 13-354 (June 30, 2014).
Facts: Hobby Lobby (and Conestoga Wood Specialties Corp.) challenged the government's requirement to provide certain contraceptives through employer-provided group health insurance plans. The United States Department of Health and Human Services ("HHS") created the regulation under the authority given by the Patient Protection and Affordable Care Act of 2010 (aka "Obamacare"). HHS exempted certain organizations from providing any sort of birth control for religious reasons; in particular, religious institutions and qualified non-profit organizations. No religious exemption was included for corporations; a conscious objection exemption was considered by Congress for corporations, but ultimately rejected. Hobby Lobby objected to four specific forms of birth control that allow fertilization of a woman's egg, but not implantation in the woman's uterus. It did not object to birth control methods that prevented fertilization. Hobby Lobby argued that as a private, closely-held, for-profit corporation, the requirement to provide these four "abortifacients" violated its (the corporation's) rights under the Religious Freedom Restoration Act of 1993 ("RFRA").
Issue: Do the religious protections in RFRA extend to private, closely-held, for-profit corporations and if so, does the government's contraceptive requirement for employer-provided group health insurance plans violate RFRA?
Holding: Yes. RFRA applies to private, closely-held, for-profit corporations because Congress designed those protections to be interpreted broadly, and, yes, the government's contraceptive requirement does violate RFRA because it is not the least restrictive means of serving the government's compelling interest.
Reasoning: The majority opinion tackles RFRA's application to corporations as a necessary first step in its analysis. The government argued that by choosing to incorporate their business, the Hobby Lobby family forfeited the protections of RFRA, which were designed for individuals. The majority looks at congressional intent to resolve the issue. RFRA was created to broaden religious freedoms for people beyond what the Court had articulated in prior case law. Additionally, Congress included corporations in its definition of "persons" under RFRA by not specifically excluding them. There's a statute that provides definitions for federal laws that don't otherwise specifically define terms (it's called the Dictionary Act). Under its definition "person" includes corporations. If Congress wanted to exclude for-profit structures, it would have specifically defined "person" to not include corporations. Since it didn't, RFRA applies.
The government also argued that Hobby Lobby could not "exercise religion" as a corporation because its primary purpose in existing is to make money. The majority disagreed and points to prior decisions where religious protections were provided to businesses (sole proprietors). It also points out that money-making is not the sole reason for running a business as recognized by state laws which allow corporations to be formed for "any lawful purpose." Furthermore, RFRA itself says that its provisions "shall be construed in favor of a broad protection of religious exercise." For-profit corporations can "exercise religion" as defined by RFRA.
Once the statute's application was decided, the government's contraceptive requirement came under scrutiny. The majority applied the legal standard as written in RFRA, which prohibits the federal government from making laws or regulations that substantially burden the exercise of religion
unless it is the least restrictive means of serving a compelling government interest. The Court concluded that the regulation was substantially burdensome ($475 million a year in penalties for non-compliance) and presumed that providing contraceptive care to employees was a compelling government interest. This left only one remaining issue: was the regulation the least restrictive means of serving that compelling government interest?
The Court determined that it was not the least restrictive means of providing contraceptive coverage through employer-provided plans. Most persuasive to the Court was the fact that HHS had already created a strategy that would allow religious institutions and qualified non-profit organizations to provide group health insurance without having to pay for contraceptives, but still provide employees with access to contraceptives at the same cost as if they had been covered by the plan. If it works for non-profits and religious institutions, it can work for closely-help, for-profit corporations too. Thus, the regulation is not the least restrictive means of achieving the compelling government interest and, therefore, violates the protections as set forth in RFRA.
Concurring (Kennedy): Justice Kennedy adds a few remarks to make it clear that providing contraceptive coverage is indeed a compelling government interest and to reinforce that the exercise of religion includes "the right to express those beliefs and to establish one's religious (or nonreligious) self-definition in the political, civic, and economic life of our large community."
Dissent (Ginsburg): Three other justices joined Ginsburg's dissent, including: Sotomayor, Breyer, and Kagan, with Kagan and Breyer opting out of the final section of her dissent. Like the majority, Ginsburg looks at the two main issues, whether the RFRA applies to a for-profit corporation and whether the government's contraceptive requirement violates RFRA.
The dissent points out that if Hobby Lobby had tried to bring a First Amendment case (which it did not),it would have lost. The First Amendment is not violated when the government's law or regulation is neutral (not designed to restrict exercise of religion) and generally applicable (like paying your taxes or making drugs illegal). Furthermore, individuals are not afforded constitutional protection to "exercise their religion" when their exercising significantly impinges the rights of third parties.
The dissent disagrees with the Court's use of the Dictionary Act because the Act specifically states that it only applies if the meaning is not ascertainable from the context. The context makes it clear that "persons" as used in RFRA does not include for-profit corporations because for-profit corporations have never, not once, been recognized as having free exercise rights under the First Amendment.
RFRA should not apply to for-profit corporations. Assuming that it does, the corporations have not made a showing that the burden on their exercise of religion is substantial because the connection between providing coverage of these particular types of contraceptives through health insurance companies to independent decision-makers (the employees) is too attenuated to be considered substantial.
Finally, the least restrictive means is met, and the regulation should be upheld over the religious objection. The dissent argues that the majority's answer of the government shouldering the cost is not a viable least restrictive means because it leads to a slippery slope of religious objections from corporations. There is no least restrictive means available to for-profit corporations, an entity not equivalent to a religious non-profit organization.
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