Hobby Lobby and the hobbling law
Last week’s Supreme Court decision in Hobby Lobby v. Burwell predictably unleashed a firestorm of controversy that has burned through every sector of the press. If nothing else, part of that controversy has to land at the feet of the Roberts court’s almost timid approach to controversial cases, in many cases ruling so narrowly as to satisfy neither party. That’s certainly the case with Justice Samuel Alito’s opinion in Hobby Lobby, which takes almost superhuman pains to avoid any troubling implications that might be drawn from the decision. For example:
HHS and the principal dissent argue that a ruling in favor of the objecting party in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations or blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.[…]
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fail if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
One doesn’t have to be a lawyer to see the gigantic question that’s left lingering over these two paragraphs of analysis: What interests and arguments would make you rule the other way? On this, at least, Justice Ginsburg’s otherwise intemperate and hyperbolic dissent is quite right to observe:
Would the exemption the Court holds [the Religious Freedom Restoration Act] demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (scientologists); medications derived from pigs, including aenesthesia, intravenous fluids and pills coated in gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists, among others)? According to counsel for Hobby Lobby, “each one of these cases…would have to be evaluated on its own…apply[ing] the compelling interest-least restrictive alternative test.” Not much help for the lower courts bound by today’s decision.
Note that, of the above-listed items, Alito only addresses vaccinations. Why? Because it’s the only one where the court has already ruled against at least one respondent, and where the public health needs are clearly, undeniably different from this case. Alito’s strict avoidance of weighing in on the other questions leaves open a troubling implication – that the court would not actually see a difference, if similar lawsuits were brought, however unlikely that may be.
Where Ginsburg (and her many, many partisans) are wrong, however, is in entirely blaming the court for this anarchic implication. Alito’s opinion analyzes Hobby Lobby’s claims not through the lens of the First Amendment, but rather solely by questioning whether the contraceptive mandate violates the Religious Freedom Restoration Act, a statute written by then Rep. Charles Schumer. The law passed by a Democratic Congress in the early 1990s in response to another case, Employment Division v. Smith, which held that laws banning the use of peyote could be applied to Native American tribes because anti-drug laws were neutral in intent, if not in application. In one of his many prescient moments, in the majority opinion in Smith, Justice Antonin Scalia justified this decision by quoting from the much older, 19th century case of Reynolds v. Sims, which held that Mormons could not exempt themselves from federal laws against polygamy:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.[…]Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
The idea of this doctrine being applied to Native American tribes, however, apparently so offended Congress that it passed RFRA by an overwhelming margin. And while, as Megan McCardle rightly notes, RFRA does not “permit every citizen to become a law unto himself,” it does make the enforcement of laws that conflict with religious practices much harder to justify by requiring that courts apply what is known as the “strict scrutiny test” to any laws that govern religious practice, however incidental this is to their purpose. In other words, it requires the courts to ask whether those laws 1) serve a compelling state interest and 2) do so by the least restrictive means possible. In theory, this test is passable. In practice, Supreme Court history shows that it is where most laws go to die.
So it’s no surprise that when RFRA first came before the court, after a church official sued to have building codes overturned so that he could expand his church in City of Bourne v. Flores, Justice Kennedy struck it down as applied to state law, writing:
RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.[…]Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter.
In response to this decision, Congress passed an amendment, the RLUIPA, restricting RFRA’s protections only to entities receiving federal funds.
Which brings us, at last, to Hobby Lobby. Unless the Supreme Court had decided to follow its decision in Bourne and overturn the law wholesale, there was practically no way around the decision it inevitably reached. Indeed, it is to Justice Alito’s credit that he tried to narrow the ruling, given the “sweeping coverage” that RFRA has already been ruled to provide. There is a good case that the contraceptive mandate is unconstitutional, even according to the jurisprudence laid out before RFRA, but to behave as though the contraceptive mandate being invalidated is sufficient justification for RFRA is about as reasonable as suggesting amputation as a remedy for a paper cut. If Bourne didn’t do the job the first time, then Hobby Lobby exposed RFRA for what it is – a broken law that can exempt massive numbers of religious practices from regulation, and therefore acts as a de facto subsidy to those religions.
Hobby Lobby‘s supporters are right to celebrate the consistent application of the law, but they ought to bemoan this law’s existence. And if Hobby Lobby’s discontents truly wish to prevent future rulings, then the focus of their ire should not be the court that is obligated to rule within the confines of the often -boneheaded laws that Congress passes, but rather to repeal the boneheaded laws that produce such rulings in the first place.
