Hobby Lobby -- Part 2

INTRODUCTION

In the interest of providing as comprehensive and objective of an analysis of Supreme Court decisions as possible, I've decided to cover Justice Ginsburg's dissent in Burwell, et al. v. Hobby Lobby, Inc., et al. (Click on the link, search "Ginsburg," and press enter a few times. You'll get to her dissent soon enough. It's about halfway down the page.) I think that it can be difficult for me when to keep things organized when writing about dissents because they tend to just poke a lot of holes in the majority and break every piece down into little parts, so I apologize if this is confusing. Let's begin.

(Note: I highly encourage reading Part 1, which covers Justice Alito's majority opinion, for context before reading Part 2. I gloss over some relevant laws and legal principles here because they are explained in Part 1.)

THE "BURDEN OF PROOF" REVISITED

Justice Ginsburg's dissent thoroughly critiques the majority opinion, so much so that it might be hard to see how each argument fits into the broader picture. Here's a simple outline to keep in mind as you read the rest of this. Hobby Lobby, et al., must prove that they qualify to sue under the RFRA. (This is also called "having standing.") To do so, they must prove that (a) they are persons as defined under the RFRA and (b) they are persons capable of exercising religion within the meaning of the RFRA. Once they have established that they have standing, they must prove that (c) the HHS' requirement that they provide coverage for those four types of contraceptives is a "substantial burden" on their exercise of religion. If they fail to prove any of those parts, they lose the case. Even if they successfully prove all three points, they would still lose the case if the government successfully proves that the requirement is (d) the least restrictive means of furthering a (e) compelling government interest. But if the government fails to disprove (a), (b), or (c) and fails to prove (d) and (e), then Hobby Lobby, et al., wins. Justice Ginsburg spends a lot of time on (a), (b), and (c), and it's important to remember that any one of her arguments on these three points could be sufficient to convince you that Hobby Lobby, et al, should not have won. If you're not convinced by her arguments on (a), (b), or (c), then we move on to (d) and (e). Once she starts arguing about (d) and (e), though, it's not enough for her to respond successfully to one or two of the arguments of Hobby Lobby, et al.; she has to respond successfully to all of them.

THE FIRST AMENDMENT
SECTION II OF JUSTICE GINSBURG'S DISSENT

A semi-obvious question that some of you might have been asking is this: Why didn't the majority rule for Hobby Lobby, et al., on First Amendment grounds? The answer is that a similar case, Employment Div. v. Smith, had already established that the First Amendment's Free Exercise Clause is not violated when "prohibiting the exercise of religion . . . is not the object of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid provision. ... We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." (Interestingly, Justice Scalia wrote the majority opinion in that case.) Even without looking at Smith as a precedent (precedents are earlier cases that inform the court's opinion on future cases, for example by establishing legal principles), two other cases, Wisconsin v. Yoder and Estate of Thornton v. Caldor, Inc., establish that religious objections under the Free Exercise Clause will fail if the accommodations for them significantly harm the interests of third parties. Justice Ginsburg asserts that the objection advanced by Hobby Lobby, et al., would fail under the Free Exercise Clause because granting Hobby Lobby, et al., an exemption in recognition of the fact that there are alternative ways to ensure cost-free access to the four types of contraceptives significantly harms the interests of the corporations' female employees.

THE LAW REVISITED
SECTION III A AND B OF JUSTICE GINSBURG'S DISSENT

I'm not quite sure why Justice Ginsburg discussed how the claim may have been adjudicated under the Free Exercise Clause because the majority opinion focuses entirely on the RFRA (maybe just to emphasize how Hobby Lobby, et al., should have lost under any front? If you have ideas, please comment!), which is where we turn next in Justice Ginsburg's dissent.

The legislative history of the RFRA indicates that it was passed in response to Smith, overruling it in a sense. Remember that Smith established that a law "of general applicability" doesn't violate the Free Exercise Clause even if it happens to infringe on religious exercise. Well, the RFRA explicitly provides that the government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." But, Justice Ginsburg writes, that is the only change it was intended to make to the way the Supreme Court decided cases concerning religious exercise.

But wait -- doesn't the RFRA also provide that the government shall not burden a person's religious exercise unless applying the burden is the "least restrictive means" of furthering a "compelling" government interest? Yes, it does. But that isn't anything new; the courts were already using that standard before the RFRA and before Smith. There's no indication that the RFRA was intended to require the courts to be any more stringent or lenient on laws concerning religious exercise than they were before Smith, contrary to the majority's claim that the RFRA was meant to require the courts to be more stringent. There's a lot of indication from congressional records that the RFRA was intended to simply restore the way the courts decided cases concerning religious exercise to the time before Smith, to the time before the Supreme Court ruled that laws of general applicability can't violate the Free Exercise Clause.

(I'm planning to write a post about the different methods of statutory and constitutional interpretation, which I've spent a bit of time studying, so look out for that!)

ASSUMPTIONS OF THE CASE REVISITED
SECTION III C 1 OF JUSTICE GINSBURG'S DISSENT

Justice Ginsburg kind of blends the issue of corporate personhood and corporate religious exercise together, so I've combined her criticisms of both into one section.

Remember that the Dictionary Act establishes that when a law's use of the word "person" includes "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals" unless the context indicates otherwise. The majority said that the context of the RFRA didn't indicate otherwise because nothing in the text or history of the act indicated any intention to exclude for-profit corporations, but Justice Ginsburg disagrees for a few reasons. The first is that the RFRA talks of "a person's exercise of religion," and we normally attribute the ability to exercise religion to human individuals, not "artificial legal entities" like for-profit corporations, as Justice Ginsburg put it. The second reason is that if the RFRA was passed to restore the way the Supreme Court decided religious exercise cases to the time before Smith, then unless otherwise indicated, its use of the word "person" shouldn't include for-profit corporations because the Supreme Court hadn't recognized personhood or free exercise rights of for-profit corporations at the time before Smith. This effectively turns the Dictionary Act's presumptive inclusion of for-profit corporations in the definition of "person" into a presumptive exclusion. Justice Alito said that because there's nothing in the RFRA's text or context to suggest an exclusion of for-profit corporations, they should be included under the law; Justice Ginsburg said thad because there's nothing in the RFRA's text or context to suggest an inclusion of for-profit corporations, so they should be excluded under the law. Moreover, there are some congressional records indicating that the RFRA was not intended to "create ... new rights for any religious practice or for any potential litigant," including corporations.

Justice Ginsburg also argues that even though for-profit corporations may use their funds to further religious ends, they still differ from nonprofit religious organizations because "religious organizations exist to foster the interests of persons subscribing to the same religious faith," while for-profit corporations don't, and that fundamental difference is enough to explain why First Amendment and RFRA protections apply to nonprofit religious organizations' religious exercise but not to for-profit corporations. (I'm not sure if there's a difference between a nonprofit corporation and a nonprofit religious organization, but it's worth noting that Justice Alito's argument about this issue refers to nonprofit corporations, while Justice Ginsburg's response refers to nonprofit religious organizations. They might be talking past each other, in which case Justice Alito would be on the winning side.)

Finally, Justice Ginsburg responds to the merchant example Justice Alito provides by saying that "in a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity's obligations." Even though nothing else has changed about the five merchants except for their incorporation, that change alone is sufficient to explain why the newly founded corporation should not be allowed to raise religious objections. She also says that the extension of the RFRA to for-profit corporations is "bound to have untoward effects" because the logic behind the argument "extends to corporations of any size, public or private." This, however, seems to me like more rhetoric than substance compared to her previous arguments. The consequences of a given conclusion shouldn't dictate the conclusion and the legal reasoning behind it; the legal reasoning should dictate the conclusion, which determines the consequences. The claim that the majority's logic extends to all corporations is not a reason to dismiss the logic, because if the logic is in fact legally sound, then the RFRA should be extended to included all corporations.

QUESTIONING SINCERITY OF THE BELIEF VS. SEVERITY OF THE BURDEN
SECTION III C 2 OF JUSTICE GINSBURG'S DISSENT

Remember that the RFRA provides that the government shall not substantially burden a person's exercise of religion. Justice Ginsburg writes that the majority conflates questioning the sincerity of a person's religious beliefs with questioning whether the government is substantially burdening that person's religious exercise. The former the court may never do; the latter the court must always do.

For example, in Bowen v. Roy, the court accepted the sincerity of a father's religious belief that the use of his daughter's Social Security number "'may harm [her] spirit'" and recognized that "the father's 'religious views may not accept' the position that the challenged uses concerned only the Government's internal affairs," but it held that the government's internal use of that number "'place[d] [no] restriction on what [the father] may believe or what he may do'" and therefore did not constitute a substantial burden on the father's religious exercise.

"RFRA ... distinguishes between 'factual allegations that [plaintiffs'] beliefs are sincere and of a religious nature,' which a court must accept as true, and the 'legal conclusion . . . that [plaintiffs'] religious exercise is substantially burdened,' an inquiry the court must undertake," Justice Ginsburg writes. "That distinction is a facet of the pre-Smith jurisprudence RFRA incorporates. ... Inattentive to this guidance, today's decision elides entirely the distinction between the sincerity of a challenger's religious belief and the substantiality of the burden placed on the challenger."

Justice Ginsburg then writes that the contraceptive mandate did not constitute a substantial burden on the religious exercise of Hobby Lobby, et al., because "the requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans." Moreover, "the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers." Even if providing access to these four types of contraceptives is against the beliefs of Hobby Lobby, et al., the HHS' requirement that they provide health coverage for them, among other medical services, does not substantially burden their religious exercise.

I'm not sure if there's a clear and defined way for the court to determine whether a government law or policy is a substantial burden on someone's religious exercise to make this easier to understand and explain, but it doesn't seem like there is. If any of you have a better understanding of this, please comment!

PASSING THE TEST
SECTION III C 4 OF JUSTICE GINSBURG'S OPINION

Even allowing that the contraceptive mandate constituted a substantial burden on the religious exercise of Hobby Lobby, et al., it is the least restrictive means of furthering a compelling government interest. Justice Ginsburg writes that the government has successfully shown that there are no viable, less restrictive alternatives. The majority opinion's suggestion that the government simply pay for access to the four types of contraceptives at issue can't be implemented because the ACA "requires coverage of preventive services through the existing employer-based system of health insurance 'so that [employees] face minimal logistical and administrative obstacles.'" Moreover, Ginsburg argues, there would be no end to the number of accommodations the government would have to make by paying for things itself. (Again, though, if the majority opinion is legally sound and correct, then this should happen.)

Ginsburg also brings up the majority opinion's second suggestion, that the government make the same accommodations for closely held, for-profit corporations as it does for nonprofit corporations, but she doesn't provide any reason it wouldn't work. What she does suggest, however, is that the accommodation would not necessarily satisfy all corporations' religious objections, as is the case for Wheaton College, which objected to signing self-certification forms as part of the accommodation already in place for nonprofits and obtained a temporary exemption.

UNITED STATES V. LEE
SECTION IV, PARAGRAPHS 1-2 OF JUSTICE GINSBURG'S OPINION

Justice Ginsburg ends her dissent by citing two excerpts from the 1982 case United States v. Lee and briefly discussing their implications for the present case. In Lee, the court held that an Amish employer had religious objections to paying the employer's share of Social Security taxes and to withholding Social Security taxes from his employees nonetheless had to pay them because it was the least restrictive means of furthering the compelling government interest of "assuring mandatory and continuous participation in, and contribution to, the social security system" (Section II B of United States v. Lee).

The first excerpt says that "when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity." In the context of this case, then, Hobby Lobby, et al., cannot impose their faith on their employees, to which the "statutory scheme" of employer-based comprehensive health coverage applies as well.

The second excerpt is one in which the court in Lee recognized that granting a religion-based exemption to a commercial employer (which, remember, they declined to do in Lee) would "operat[e] to impose the employer's religious faith on the employees." In the context of this case, Ginsburg writes, Hobby Lobby, et al., may not impose their religious beliefs and choices on their employees; "working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so." Notice the qualifier. Justice Ginsburg writes that religious exemptions can be granted, but the legislature or the executive should be the one to grant them, not the courts. The courts can't determine which religious objections "are worthy of accommodation," according to Justice Ginsburg, because the courts are not allowed to determine which religious claims are plausible; they must accept any offered belief as sincerely held. The legislature and the executive, on the other hand, can make such determinations.

Justice Ginsburg then concludes by raising the concerns outlined in the "Pandora's Box" and "Playing Favorites" sections of Part 1 of this explanation. Regarding the possible Pandora's Box, she does not refute the suggestion that courts simply apply the strict scrutiny test on future cases as well, instead merely saying that it is "not much help .. for the lower courts bound by today's decision." Regarding the possibility of playing favorites, I think it's important to note that Justice Ginsburg writes that "approving some religious claims while deeming others unworthy of accommodation could be perceived as favoring one religion over another," not that it would ACTUALLY be favoring one religion over another (internal quotation marks omitted). However, even mere perception is problematic for Justice Ginsburg; she writes that the perception of bias is "the very risk the Establishment Clause was designed to preclude" (internal quotation marks omitted). Whether that mistaken perception is the fault of the court for growing an increasingly complex body of jurisprudence with its own terminology that is inaccessible to many, or whether it's the fault of many in the United States for not putting in the requisite effort to engage our country's legal process, it's a problem that perhaps underlies a lot of the public's mixed opinions about the Supreme Court.

And that just about summarizes the main points of the dissent. If you feel like I missed an important point, please comment or email me at beyondsoundbites@gmail.com! And please subscribe to get email updates when new content is posted!

Disclaimer: This is only intended to be an explanation of Justice Ginsburg's dissenting opinion. I do not take a stance on whether the opinion is right or wrong, but I do think that a lot of comments circulating about it are misdirected or mischaracterize it. I chose to limit this post to the minority opinion because throwing in the majority opinion would make this post too long and potentially confusing. (I think you might have already gotten a sense of that while reading this, when I referenced things back and forth and brought up details that one side mentions but the other leaves out.)