The Hobby Lobby majority, summarized in (relatively) plain English


WASHINGTON, DC – JUNE 30: People arrive to attend the final session of the term at the U.S. Supreme Court on June 30, 2014 in Washington, DC. Today the high court is expected to give its ruling on whether a private company can be exempted on religious grounds from health care reform’s requirement that employer sponsored health insurance policies cover contraception. (Photo by Mark Wilson/Getty Images)

Here’s my shot at trying to summarize what the majority was saying in the Hobby Lobby decision. Note that I’m saying this in the voice of a hypothetical Supreme Court justice trying to quickly explain his decision; I’m not necessarily endorsing the statements made below but just trying to accurately capture the majority’s reasoning.

1. Congress has decided that religious objectors may go to court to demand religious exemptions from federal laws, when the law makes them do things that they view as religiously forbidden. That’s not required as a constitutional matter under the Free Exercise Clause; the Court decided that in Employment Division v. Smith (1990). But in enacting the Religious Freedom Restoration Act (RFRA), Congress chose to give religious objectors a statutory right to such exemptions, at least in many cases:

Government shall not substantially burden 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 …

is the least restrictive means of furthering [a] compelling governmental interest.

2. RFRA doesn’t exclude laws which impose a burden on closely held religious corporations. To be sure, a corporation is a legal fiction; it cannot itself practice religion, or for that matter do anything else. It acts only through people.

But — precisely because a corporation is just a legal fiction — when a law requires such a corporation to do something that its owners believe to be religiously forbidden, it burdens the religious freedom of those real owners, and not just of the fictional corporation itself. “[P]rotecting the free-exercise rights of corporations like Hobby Lobby … protects the religious liberty of the humans who own and control those companies.”

3. The owners of Hobby Lobby sincerely believe that it’s wrong for them to buy their employees insurance plans that they see as supporting abortion. They have no objection to contraception as such, but they view contraceptives that prevent the implantation of a fertilized egg as tantamount to abortion drugs.

The government acknowledges that its regulations require businesses to pay for such contraceptives (on pain of substantial monetary penalties). Therefore the law substantially burdens the owners’ religious practices, by requiring them to do something they think religiously forbidden.

To be sure, the law doesn’t require the employers to personally get abortions or perform abortions. But the employers sincerely believe that even buying insurance policies that pay for such abortions is religiously forbidden complicity in abortion.

It’s not for courts to second-guess the reasonableness of such judgments about how to define religiously forbidden complicity. “[T]he Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”

4. Of course, the legal system has many rules that require people to do what they think religiously wrong (or, the legal equivalent, to not do what they think religiously required). Not all religious exemptions can be granted. RFRA provides that, if denying the exemption is really the least restrictive means of serving a compelling government interest, a court should indeed deny the exemption.

But “[t]he least-restrictive-means standard is exceptionally demanding.” Under RFRA, if the government can — even by changing the way its programs operate, and at some cost to taxpayers — both adequately serve its compelling interests and provide an exemption to religious objectors, then it must do so.

And here, the government can indeed both provide free contraceptives (as the regulations under the Congressionally enacted Affordable Care Act provide) and exempt religious objectors (as the Congressionally enacted Religious Freedom Restoration Act provides).

First, the government could pay for the contraceptives directly. Though that would cost taxpayer money, religious exemptions sometimes do cost money, and the extra cost would be a tiny fraction of the ACA’s $130 billion expense per year. Indeed, RFRA’s sister statute, the Religious Land Use and Institutionalized Persons Act, provides that it “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”

Second, the government has already exempted some religious nonprofits from the law. Under this exemption, insurers would (1) exclude contraceptive coverage from the employer-paid health plan, and (2) separately pay for contraceptive coverage that the insurer would provide directly to the employees. (The government has concluded this is fair to insurers because the cost to them of contraceptives would be balanced by the savings from lower pregnancy costs and other health costs.) A similar plan is available for self-insured religious nonprofits.

These exemptions could easily be extended to for-profit religious objectors such as Hobby Lobby. Such an extension would mean the government can still ensure that contraceptives are provided at no cost to patients, but Hobby Lobby and similar objectors wouldn’t be required to do what they think their religions forbid.

5. This sort of accommodation is what Congress has mandated. When both the government’s compelling interests and religious objectors’ religious beliefs can be adequately accommodated, Congress said (in enacting RFRA) that they should be accommodated.

But Congress also said that these decisions must turn on the facts of each exemption request, and the options available for accommodating such accommodation requests. In future cases — for instance, ones involving race discrimination in employment, or insurance coverage for vaccination or blood transfusions — the result might be different.

It might not be possible in those cases (as it is in this case) to adequately accommodate both the government interests and the religious objections. If that’s so, then those religious exemptions would not have to be granted. Wisely or not, Congress has required courts to sort through religious exemption requests, granting some and denying others. This is what the Supreme Court has done here.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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