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Prof. Mark Rienzi: A good day for Hobby Lobby — and for the Little Sisters of the Poor and Mr. Muhammad, too

Prof. Mark Rienzi, who won last week’s McCullen v. Coakley, and who litigates together with the Becket Fund for Religious Liberty, has these thoughts on Hobby Lobby; I thought our readers would be interested in them, so I’m passing them along. (Please note that these are Prof. Rienzi’s thoughts, on behalf of the Becket Fund, not my own.)

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Here are a few initial thoughts on today’s decision in Hobby Lobby from the perspective of a law firm — The Becket Fund for Religious Liberty — that has been litigating these cases against the Department of Justice across the country for almost three years, and was counsel for Hobby Lobby in this case. First I offer some highlights from the opinions by Justice Alito and Justice Kennedy, and then I point out some near-term effects on religious liberty litigation.

Today’s decision is a landmark in many respects:

  1. The Court, on a 5-2 vote, clarified that for-profit corporations can exercise religion. It was well-established that corporations could exercise religion, and that profit-making ventures could also exercise religion. And as the Court pointed out today, the various opinions in Gallagher v. Crown Kosher Markets made it hard to conclude that putting the two together eliminated the ability to engage in religious exercise in the sense of the First Amendment and RFRA. But Hobby Lobby now establishes the point beyond any doubt. Notably, only two Justices — Ginsburg and Sotomayor — embraced the Government’s prominent argument that for-profit corporations are categorically incapable of engaging in religious exercise.
  2. Hobby Lobby is the first case where the Supreme Court has addressed the question of a substantial burden under the Religious Freedom Restoration Act. It found the substantial burden question in this case very easy, finding that the “surely substantial” fines at issue meet the test: “If these consequences do not amount to a substantial burden, it is hard to see what would.” The Court analyzed the question by (a) identifying the religious practice at issue; (b) identifying the government-imposed burden on that specific practice; and (c) determining whether that burden was substantial. The Supreme Court’s process for deciding the issue in this case will be an important benchmark for substantial burden analyses in future cases.
  3. The Court rejected the idea, proposed by some of the Government’s amici, but not embraced by the Government itself, that Hobby Lobby would suffer no burden if it simply terminated health insurance for all of its employees. As the Court noted, the Greens have a religious reason to provide that health insurance. And as a purely practical matter, the Court found it implausible (and in any case not argued by the government or supported by the record evidence) that terminating health insurance and compensating employees with additional wages would be no burden. Indeed, the costs would be higher because individual healthcare policies are generally more expensive than group healthcare policies, wages are taxable income, and administrative difficulties would make it impossible for Hobby Lobby to restore the “status quo ante” for its employees. If the Government does decide to begin making this argument in ongoing mandate litigation, it looks set to fail.
  4. The Court rejected in fairly harsh terms the Government’s main argument regarding substantial burden (both in the for-profit cases and the non-profit cases), namely, that the Greens’ objections to complicity in abortion are too “attenuated.” The Court turned this argument down flat, saying that it “[a]rrogat[ed] the authority to provide a binding national answer to this religious and philosophical question,” and amounted to the Government deciding that the Greens’ religious beliefs are “flawed.” This ruling will have significant effects on the non-profit cases (see below).
  5. The Court declined to reach the compelling interest portion of the Government’s strict scrutiny affirmative defense, though it cast serious doubt on whether the Government had met the standard spelled out in the 2006 O Centro case. The Court pointed out that the Government’s interests were all quite general, not the “to the person” interests that RFRA requires. This is only the second time (after O Centro) that the Court has discussed RFRA’s compelling interest test.
  6. The Court instead rejected the Government’s strict scrutiny defense because it failed to meet the least restrictive means portion of strict scrutiny. There were two problems. First, the Court pointed out that that the Government had not explained why it could not simply pay for the objected-to drugs on its own. Second, the Court said that the Government’s decision to provide an exemption for some religious employers and an accommodation for others made it impossible to demonstrate that it had used the least restrictive means.
  7. Finally the Court rejected the Government’s slippery-slope arguments regarding the consequences of today’s ruling. The Court rejected the idea that today’s ruling allows for racism, rejection of vaccinations, and other factual scenarios that have not yet been raised. Of course, time will tell whether the Government’s parade of horribles ever comes to pass. (It hasn’t in the twenty years that RFRA has been on the books, or in the several decades before Smith when the constitutional standard was identical.) One hopes that if it doesn’t, the dissenting Justices today would reconsider their opposition to applying RFRA protections to a broad array of citizens.

So what are the near-term effects of this decision on religious liberty? Several:

  1. The most immediate effect is on the second wave of HHS Mandate cases, which involve non-profit religious institutions, such as the Little Sisters of the Poor (an order of nuns caring for the elderly poor), Eternal Word Television Network (a Catholic network founded by nuns), and Wheaton College (an evangelical college). For these institutions, the Government has proposed an “accommodation,” which requires them to sign a form authorizing a third party to provide the objectionable drugs in their place. Although the Court expressly left for another day the question of whether this “accommodation” would pass muster under RFRA, much of the Court’s reasoning in today’s decision will apply to the non-profit cases.
  2. And that reasoning all points towards another defeat for the Government. In the non-profit cases, the Government has relied almost exclusively on the “attenuation” argument that the Court sharply dismissed today. Going forward, the Government will find it very difficult to claim, as it has in many lawsuits, that the accommodation amounts to “just signing a form.” That reading is only reinforced by the Court’s citation in footnote 9 to its January decision in the Little Sisters of the Poor, reiterating that there were grounds for non-profit institutions to be allowed to opt out of the Mandate.
  3. Today’s decision also undermines the Government’s “least restrictive means” argument in the non-profit cases. The opinion for the Court makes clear that the Government must explain why it cannot simply pay for the drugs itself. And Justice Kennedy’s concurring opinion states that “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers — burdening one while accommodating the other — when it may treat both equally by offering both of them the same accommodation.” Yet that is precisely what the Government proposes to do to non-profits: It provides a full exemption to some religious employers (churches) while denying that same exemption to others (such as Little Sisters of the Poor).
  4. Indeed, just hours after the Court reached its decision in Hobby Lobby, the Eleventh Circuit issued an injunction in a non-profit Mandate case, Eternal Word Television Network v. Burwell, which involves a non-profit television network founded by nuns. The Eleventh Circuit’s decision was the first of what will likely be many opinions applying Hobby Lobby to the non-profit cases. And a concurring opinion by Judge Pryor didn’t pull any punches: He called the Government’s central argument — that the “accommodation” doesn’t impose a substantial burden on the exercise of religion — “[r]ubbish.” Op. at 21. Thus non-profit religious organizations can take heart that today’s decision helps them, too.
  5. The Hobby Lobby decision will also help plaintiffs in non-Mandate cases. For example, next fall the Court will hear Holt v. Hobbs, a case involving a Muslim prisoner in Arkansas who would like to grow a half-inch beard in compliance with his faith. The Becket Fund represents the plaintiff, Mr. Muhammad. Hobby Lobby will help Mr. Muhammad by making clear that governments opposing religious plaintiffs have a duty to explain why accommodations given to one person, for secular reasons, cannot be extended to religious believers as well. Indeed, the opinion for the Court, at fn. 41 quotes the Government’s brief in support of Mr. Muhammad in Holt v. Hobbs: “the Government itself apparently believes that when it ‘provides an exception to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.’” Thus Hobby Lobby bodes well for Mr. Muhammad too.

No one can deny that the issues in these cases arouse great passions on both sides of the issues. But in a religiously diverse country — one that includes Hobby Lobby and the Little Sisters, Eternal Word and Mr. Muhammad — it behooves the Government to allow people of many different faiths to act on their beliefs in public rather than provide a single accepted way. Hobby Lobby is a significant step in the direction of that more tolerant nation.

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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