HHS v. Hobby Lobby

Sigh

Because of popular demand, I have posted an analysis of the Hobby Lobby opinion. 

**DISCLAIMER** I am not a lawyer, and I don’t even play one on TV, so if you have a real-life legal problem, please contact a licensed attorney.  If you don’t know one, your local bar association has a legal referral service.  So does your State Bar Association.  If you live in California, your state bar association has information online along with a referral service at  www.calbar.ca.gov  Do not contact me, because all I will do is reiterate that I AM NOT A LAWYER and refer you to your local and state bar associations for assistance in finding an attorney. 

Having said that…I will now give my well-educated, but strictly academic analysis of the opinion.

First of all, the ruling applies to “closely held corporations” not publicly traded companies or other corporations (more on that definition in a minute).  This is an important distinction from a publicly traded corporation, and other corporations, all of which are governed by IRS codes and statutes.  Closely held corporations are corporations that are owned by an individual or a family, they are not publicly traded, and more than 50% of the company stock/interests are held by 5 or fewer people.

The Religious Freedom Restoration Act (RFRA) protects the religious interests of corporations and applies the two-pronged “undue burden” test of “furthering a compelling government interest” in the “least restrictive means possible.” 42 U. S. C. §§2000bb–1(a).  This is not new or novel to this case.  In any situation where a fundamental right, such as religious freedom, is being burdened, the government has the obligation under law to ensure that the goals and objectives of the law are accomplished in the least restrictive way possible so that a person’s fundamental rights and freedoms are restricted as little as possible.  Right now, a corporation has the same rights under the law as a “person” as an individual does, and therefore the three plaintiffs in the case have the same rights under the RFRA as an individual person.  In its opinion, the court argued that protecting the religious interests of “closely held corporations” (corporations owned by a family or small group and generally not publicly traded) protects the religious interests of the people who own them.  This is a key consideration because even though the lawsuit was against a corporate entity, it was requiring the individuals who owned the closely held corporation to violate their religious beliefs, something the court took issue with.

The HHS argument that closely held corporations should not be considered persons under 1 U.S. was struck down when the definition of a corporate person was applied using the decision in Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418.  In Gonzales, the court ruled that a non-profit corporation was considered a person under 1 U.S., and therefore, the definition in Gonzales also applied to a closely held corporation.  Because of this, the argument that a closely held corporation is not a person under 1 U.S. and therefore does not have the right of religious protection under 1 U.S. was considered to be invalid for the purpose of applying the RFRA to the religious organization exemption provided in the Affordable Care Act (ACA).

Under the RFRA, the court also found that closely held corporations could claim religious protection under the First Amendment, even though they were “for profit.”  According to the opinion, to deny a corporation the right to exercise religious freedom just because they are “for profit” denies them equal protection under the law.  The law applies equally to all members of society, including corporations.  The law cannot “cherry pick” who is entitled to freedom and who is not.  The law must apply equally to all members and constituents of society – even corporations, even when it comes to the free exercise of religion and religious freedom Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877.

According to the HHS v. Hobby Lobby opinion, there is nothing in the RFRA that clearly defines who is a person under the definition of the act, nor does it specifically exclude any entity or individual.  When there is an absence of a definition or application, the court is required to apply the law broadly and include corporations and public entities that might otherwise be excluded through either definition or application of the law.  Neither of these applies in this situation.  The court found that the three plaintiffs were entitled to the protection of the RFRA. (Again the precedent is Smith 494 U.S.)  With that as the basis for their analysis, the court then looked at the contraceptive requirement under the ACA to determine whether or not the plaintiffs would be required to provide it despite the fact that they claimed it violated their religious beliefs.

As part of its analysis, the court looked at the burden and penalties the plaintiffs would endure if they followed their religious beliefs and did not provide coverage.  The court found that if they did not provide the coverage, they were going to face undue burdens and economic hardship – namely penalties and fines for not providing coverage or dropping insurance coverage altogether.  The court found that this would penalize them – a violation of the free exercise clause of the First Amendment.  Requiring a person to choose between their religious beliefs or significant penalties if they fail to comply with a law restricting their religious beliefs is a clear violation of the 1^st Amendment right of Free Exercise.

The HHS arguments about providing coverage for contraception for non-contraceptive reasons also were denied because it placed an undue burden on the companies to try and determine whether or not those reasons were valid and because it still violated their 1^st Amendment Right of the free exercise of their beliefs.  The court found that trying to determine whether an employee was prescribed birth control for a non-contraceptive reason was unduly burdensome on the employer and created a situation where the employer was put at risk for his beliefs being violated.  The court reiterated that it was not legally permissible for them (the court) to make decisions about whether or not a religious belief is reasonable – only if it is sincerely held, and the court determined that in this case it was.

However, the most compelling reason for the court’s decision was spelled out in the words “least restrictive means.”  Basically this says that the HHS provision that all companies must provide coverage was very broadly written, and did not take into account how to provide necessary coverage without violating the rights of corporations that were fundamentally against the use of contraceptives and abortion coverage.  When the court argued that HHS did not find the “least restrictive means” possible, they argued a very key technicality – namely that a statute must not be overly broad or burdensome and that all other possible avenues for coverage or compliance must be exhausted before this solution is put into place.

The court reasonably argued that HHS could have employed the methods already written in for providing contraceptives to employees of religious institutions or organizations that have a religious objection to contraceptives, or they (the government) could “eat” the cost of providing contraceptive coverage for women not covered under their employer plans.  These two options are already in place for other organizations, and the court was using statutory precedence to prove that there were other less-restrictive means necessary for providing contraceptive coverage under the ACA that would still comply with the RFRA.

The ruling was also important because it limited its scope strictly to contraceptives and specifically ruled out other medically necessary procedures such as surgeries, blood transfusions, etc. which are also sometimes found to be in conflict with religious beliefs.  In this ruling, the justices specifically excluded those, and strictly limited its ruling to contraceptives.  This limitation is important because opponents of the ruling argued that it would open the door for employers to start refusing coverage for necessary care such as blood transfusions and vaccines.  The language in the opinion clearly stated that it was not establishing this precedent, and this ruling should not be used to deny or discriminate coverage by using religious beliefs as a shield.  The justices made it clear that this was only for the purpose of contraception, and because of the fact that religious beliefs regarding life and contraceptive use are so intertwined that it is impossible to separate the two, and to attempt to do so would place the court at risk of interpreting religious beliefs (which is a huge violation of the First Amendment).  It also protected employees by explicitly stating that discriminating against someone on the basis of their medical needs and “cloaking” it under the guise of religious beliefs or doctrine would not be tolerated. 

In the end, the court’s ruling turned on the fact that there is another alternative to employer-provided coverage for contraceptives, and the HHS failed to give this alternative to the plaintiffs in the case.  Instead, they required that the companies in question provide contraceptives without considering whether or not there was room under the religious organization category for closely held corporations whose owners had religious objections to contraceptive coverage.

So, the decision here was ruled on a technicality – but an important technicality.  The “least restrictive means” test is a check on legislative power.  It keeps laws from becoming overly restrictive or burdensome.  It is important for religious freedom, because it protects the idea of “least restrictive means” and finds in favor of the person. Yes, in this case it was a corporation, but the law does not make a distinction these days on whether or not a person is an individual or a corporation – and the laws and decisions will apply equally to both.  This can be both a blessing and a curse.  It is a double-edged sword – there is no way around it.  You can not protect the interests of an individual person and at the same time deny those protections to a corporation, whom is also seen as a person under the law.  In it's opinion, the court walked a fine line between protecting religious freedom and protecting the rights of employees of religious organizations.

I’m sure that I will also be asked how do I feel about this.  To be honest, I have mixed feelings on the subject.  Religious freedom, and the right to worship in accordance with my conscience and my understanding of G-d and the Universe is incredibly important to me; this ruling reassured me that protecting religious freedom in this country is not something this court takes lightly or frivolously.  Because of the very politicized nature of this opinion, it is easy to lose sight of that fact.  This country was founded on the principle of religious freedom and the right to worship, or abstain from worship, as one sees fit.  This ruling strengthens this precedent by striking down a provision in the law that was overly broad and placed religious freedom at risk.  While that seems hard to believe, please remember that under common law, legal precedent is binding, and how it will be applied in later cases is not always foreseeable.  Citizens United taught us that, and serves as a cautionary tale in legal precedence.

As a woman and as a sexuality educator for my church, the ruling once again highlights how far we need to go in our conversations about sexuality, birth control, and responsible sexual practices.  Stripping away the arguments about how some birth control is necessary for other medical conditions, we must confront the fact that we are far less responsible about our sexual health and sexual choices than other first-world countries.  This decision highlights that instead of having the conversations about responsible choices and how to make responsible decisions about health and sexual practices, we instead have resorted to pointing fingers and arguing over who should have to pay for it, rather than discussing it as a part of being healthy and responsible members of society and how everyone bears the responsibility for making sure that we have access to the health care and choices that we need to make responsible decisions regardless of our religious beliefs, gender, or orientation.

The Hobby Lobby decision is important because it safeguards our religious freedom.  It is also important because it has opened the door to the larger, more difficult conversation about how we as a society make responsible decisions for ourselves and provide needed health care to everyone – not just those who believe the same way we do.