2013-14 Supreme Court Term, Part 7: Burwell v. Hobby Lobby

Part 7 of an occasional series on the recently completed Supreme Court Term detailing the most important cases (in my judgement, of course) and their likely impact. See Parts 1, 2, 3, 4,  5 and 6.

  • Burwell v. Hobby Lobby Stores, Inc. A 5-4 split, to resolve split circuit decisions, the case is linked with Conestoga Wood Specialties Corp. v. Burwell and Autocam Corp. v. Burwell. Pursuant to the Patient Protection and Affordable Care Act (A/K/A Obamacare), the Secretary of HHS (then Kathleen Sebelius, now Sylvia Matthews Burwell) promulgated a regulation requiring employers who offer health insurance through employment to include all 20 types of contraception (for females, no contraception types for males are included) as a mandated benefit free of charge to the insured; to specifically include 4 types of contraception alleged to operate following conception by inhibiting attachment of the fertilized egg to the uterine wall. The owners of the three named closely held for-profit corporations hold sincere religious beliefs life begins at conception and believe contraceptives so operating are indistinguishable from abortion, an act in violation of their religious beliefs. All three individually sued the Department of HHS and various named government officials to enjoin the operation of the regulation insofar as it applied to the 4 specific contraceptive means (they did not object to other means of contraception) under the Religious Freedom Restoration Act and the Free Exercise clause of the First amendment. Hobby Lobby (and Mardel, a Christian book store company, also owned by the same family, the Greens) was denied injunction in District court, reversed by the Tenth Circuit who opined the companies, being closely held, were persons under the RFRA and their freedom of religious exercise had been substantially burdened by the mandate; Conestoga was also denied injunction, upheld by the Third Circuit, who decided the company was not a person and the owners– the Hahns– were not burdened in their personal capacity. Autocam didn’t get that far, being a suit involving standing (the ability to file suit) on the same subject. The Court held (Alito, J, joined by Roberts, CJ and Scalia, Kennedy and Thomas, JJ) the corporations were persons under the meaning of the RFRA, having been so defined in the text of the act for the specific purpose of protecting the religious freedoms of the owners, directors, officers and employees of such companies; their religious freedom had been substantially burdened by mandate regulation; and thus the regulation was in violation of the RFRA. Kennedy filed a separate concurrence in addition, in which he argues the government also failed to make the case the HHS contraception mandate under PPACA was the “least restrictive means” of serving the government interest of protecting the reproductive health of female persons, also a necessary component of the RFRA. Ginsburg, J authors the dissent, joined by Sotomayor, J and joined in part by Breyer and Kagan, JJ, wherein she argues the Court has expanded the authority of the RFRA beyond the meaning intended by the framers, having extended its operation beyond the stated intent within the statute which was to restore the “compelling interest” test struck down by the Court in Sherbert v. Verner, et al, a complex legal argument I won’t detail; and is further passionate in denying any possibility, no matter how slight, there may be a First amendment Free Exercise claim in the case, despite the fact the Court’s opinion does not rely thereupon to reach its verdict. Breyer and Kagan, JJ, jointly authored a separate dissent, in which they refuse to decide if the named for profit companies are “persons’ under the meaning of the RFRA, believing the case fails on the merits before it gets that far.

One of the most eagerly anticipated and bitterly divisive decisions of the term. The case is important this year primarily due to its political impact;  the legal foundations upon which it rests haven’t changed much. The political left is determined to protect Obamacare at all costs, while the political right is equally determined to destroy it. This decision rolls back some of the most egregious overreach.

At issue here is HHS’ determination closely held for profit companies who offer health insurance must provide contraceptives of all approved types without cost to female persons in their employ, despite the fact there are some devout religious company owners who object to some (specifically, four types of the twenty available) of these as they believe them to be abortifacent in nature, a thing they consider abhorrent under their religious convictions. The owners of these companies sued under the Religious Freedom Restoration Act, which forbids the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “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.”

Alito’s majority opinion assumes provision of contraception is a compelling government interest (I’m not sure why, he doesn’t say; perhaps because Hobby Lobby didn’t challenge that aspect) but finds the contraception mandate to be burdensome, that HHS has failed to demonstrate the contraceptive mandate is the least restrictive means, and that Hobby Lobby and the allied companies are “persons” within the meaning of the RFRA. Absolutely nothing controversial there, a simple and straightforward reading of the statute. Justice Kennedy offers a separate assent in which he argues the already extant alternative method of offering relief to outwardly religious non-profits is obviously less restrictive than the contraceptive mandate. He doesn’t come out and say it, so one has to guess what he means. He might be chiding HHS for wasting the Court’s time when they had a means to resolve the issue already in place. Or he could be accusing them of formulating the mandate knowingly for the purpose of throwing their weight around, or maybe punishing religious persons. You make the call…

Ginsburg’s dissent (well worth reading, as Auntie Ruth always is) is more poetical and political than logical argument. She argues the Court risks allowing anybody to opt out of any kind of law at all on religious grounds– obviously false– and justifies this with a complex legal argument the Court goes far beyond the purpose of the RFRA which she alleges was to restore the “compelling interest” test the Court struck down in Sherbert. The statute does this, but Ginsburg’s opinion ignores the fact the Congress’ intent with the RFRA was obviously to prevent the government from burdening the free expression of religion without a really good reason (compelling interest) and unless there’s no good way around it (least restrictive means); not to mention the fact it was plainly the Congress’ intent to include, at the very least, closely held corporations by virtue of the fact they included the term in the statute’s definition of “person.” Ginsburg further devotes considerable verbiage to refuting even the possibility there might be a First amendment issue in the case. Presumably she did this to get it on the record, as the Court did not use the First amendment in their decision, it was solely statutory. As I say, more a political defense of  Obamacare than anything resembling a legal argument.

There is some question in my mind as to the legal import of all this, although it was self evidently important in the political sphere. Nonetheless, the case is about the RFRA, not the First amendment religious freedoms, and so nothing has really been decided. The political left is probably lucky about that, because if the First had been brought in, I don’t see a different outcome and they would then have lost permanently. As things are now, they can continue to challenge the freedom to express religion.


themaskedblogger is a native born Texan, a registered voter and possessed of some minimal ability to read, write and think.

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