What’s wrong with the Hobby Lobby decision

July 9

I know that I’m a little late to the party; I was travelling overseas for most of the past couple of weeks, and I’m still catching up on events (at least, events not involving soccer) that transpired while I was away.  I have what appears to be a minority opinion (here on the VC) about the Court’s recent Hobby Lobby decision: it’s a pretty ghastly bit of legal reasoning, and it will have pretty ghastly consequences.  Justice Ginsburg’s dissenting opinion gets it spot on – part III. C in particular demonstrates quite persuasively how the Court takes the wrong turn on each of the statutory requirements.  I won’t be offended if you click through and read what she wrote and skip what I’ve written below.

Let’s review the basics: RFRA prohibits the government from imposing a “substantial burden” on “a person’s exercise of religion” unless it can demonstrate 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.” So Hobby Lobby (and each of the other plaintiffs) has to show that it is a “person,” and that its “exercise of religion” has been “substantially burdened,” at which point the burden switches to the government to demonstrate that the statute is “the least restrictive means” of furthering a “compelling interest.”

The “personhood” holding (that for-profit close corporations are indeed “persons” under RFRA) has received a lot of attention.  I’m among those who think the Court got it all wrong.  While I agree (with Ilya Somin) in the principle that “people organized as corporations are still entitled to important constitutional and statutory rights,” and that when people organize themselves into corporations, they “should not have to automatically check their constitutional and statutory rights at the door,” the context here persuades me that RFRA doesn’t protect for-profit corporations when they “exercise religion,” because I have a great deal of trouble understanding how a for-profit corporation “exercises religion” at all, given that it lacks so many of the attributes of individual human beings – such as a “conscience,” a “belief structure,” a “sense of mortality,” a “sense of the divine or the sacred,” a “moral code,” and so on – that I have always thought were indispensable components of the exercise of religion.

But even putting that completely aside, the weaker part of the analysis actually comes next; even assuming that Hobby Lobby, Inc. is a “person” under RFRA and that it “exercises religion,” how (in heaven’s name, if I may) does the mandate burden the corporation’s “exercise of religion”? In any way whatsoever, let alone “substantially” (as required by RFRA)?

I have a hard time answering that question, because, as I said, I have a hard time conceptualizing how this fictional person, Hobby Lobby, Inc., has a religion, and a hard time conceptualizing how it exercises that religion.  Can the corporation no longer hold the beliefs it once held, or worship as it chooses to worship? Has it been punished for holding those beliefs? Has the government treated those with other beliefs preferentially?

The majority – astonishingly – says that it had “little trouble” with the question:

“The [owners of Hobby Lobby, Inc. and the other plaintiff corporations] have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that . . . By requiring [them] and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.”

That’s the new standard? The “serious violation of a sincere religious belief” standard? Really?

The many things wrong with this standard seem obvious to me.  That courts will be able to distinguish “serious” from “not so serious” violations of religious beliefs is downright laughable.  More troubling, the standard is the close cousin of our old friend, from First Amendment free speech law, the Heckler’s Veto.  “You are making me do something that is deeply offensive to me, so stop.” The list of things the government demands that people do (or support with their tax dollars) that are offensive to the sincerely held religious beliefs of many people is a very, very long one; one doesn’t have to be Clarence Darrow to construct the next 10,000 RFRA claims.  Many people (and I guess, given the Court’s opinion here, I have to add: “and many corporations, too”) have a sincere and deep-rooted religiously-based aversion to killing animals; are they exempt from the Food Stamps mandate? Funding NIH research? Can that really be enough to state a RFRA claim?

And do we really want the courts, in each of these 10,000 follow-on RFRA claims, to be undertaking the examination required of whether a plaintiff’s objection is “on religious grounds,” and part of a “sincere” religious belief system, and would involve a “serious” violation of religious precepts or doctrine? Naive as I am, I thought that was precisely what the First Amendment’s Free Exercise Clause, and Jefferson’s Wall, were designed to prevent: governmental intrusion and inquiry into matters of individual conscience.

It all strikes me as pretty ghastly stuff.  If there’s any good news here, it is that perhaps this decision will generate sufficient opposition and political momentum for Congress to do the only sensible thing at this point, i.e., repealing RFRA, going back to the days when we relied on the First Amendment alone to protect religious liberty; it was far from perfect, but a helluva lot better than this.

And one final thought: I really do hope, for the sake of the institution, that Chief Justice Roberts at least tried (and tried hard) to see if there were some way to enlist one of the Justices who isn’t a Roman Catholic man to sign onto the Court’s opinion.  Maybe he tried and it couldn’t be done, but it is the sort of thing one would expect a Chief Justice to be sensitive to.  The “optics,” as they say, are pretty awful, and the more that the American people think that the Supreme Court is driven by something other than actual legal reasoning, the less vital an institution it becomes, and that’s not really good for anyone.

David Post is currently Professor of Law at the Beasley School of Law at Temple University, where he teaches intellectual property law and the law of cyberspace. He is also a Fellow at the Center for Democracy and Technology, an Adjunct Scholar at the Cato Institute, and a member of the Board of Trustees of the Nexa Center for Internet and Society.
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Will Baude | July 9