This morning, I attended the Supreme Court oral argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius. In these two consolidated cases, the for-profit corporations Hobby Lobby and Conestoga Wood claim that they have a right to a religious exemption from federal regulations that require health-insurance plans to include coverage for contraceptives.
The corporations’ principal claim is based on the Religious Freedom Restoration Act of 1993 (“RFRA”), which generally provides that the federal government cannot substantially burden a person’s religious exercise unless it has a compelling interest in doing so. RFRA passed the House of Representatives unanimously and the Senate by a vote of 97 to 3.
As Justice Ginsburg suggested at today’s argument, it is inconceivable that RFRA would have received such broad support, let alone passed at all, if the members of Congress who voted for it had had any inkling of how opponents of the contraceptive-coverage regulations would attempt to use RFRA today. Represented by former Bush administration Solicitor General Paul Clement, Hobby Lobby and Conestoga Wood have given RFRA such a broad interpretation that it would give religious entities carte blanche to override individual rights not just in the contraceptive-coverage arena, but in a virtually unlimited array of contexts.
Clement’s case begins with the proposition that for-profit corporations can somehow exercise religion and therefore be entitled to RFRA’s protections. Justice Sotomayor asked how does a for-profit corporation exercise religion, who in the corporation decides what the corporation’s “religious beliefs” are, and how much of the corporation’s activities must be religious for RFRA to apply. Justice Scalia subsequently indicated that it would be sufficient if those who control the corporation merely assert what the corporation’s “religious beliefs” are for such “beliefs” to be protected under RFRA.
by Craig Konnoth, Deputy Solicitor General, Office of the Solicitor General, California Department of Justice; Co-Author, Brief amici curiae of California, et al. in support of the Government, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius; Member, Board of Directors, ACS Bay Area Lawyer Chapter
* The views expressed in this post are the author’s own, and do not reflect those of any institution with which he is affiliated or employed.
As the Supreme Court heard oral arguments today in the “contraceptive mandate” cases, one question that everyone is grappling with has to do with the ramifications of the decision. These cases concern whether the Religious Freedom Restoration Act (RFRA), which prohibits federal law from imposing a substantial burden on a person’s exercise of religion, excuses for-profit corporations from providing access to contraceptive coverage to their employees. For the Court to rule in favor of the corporations, it must hold that (1) a corporation has free exercise rights under the statute, (2) that the burden the mandate imposes is substantial and (3) the interests the mandate serves are not compelling. Ruling in favor of the plaintiffs on any of these grounds will have substantial effects for doctrine across the board.
However, one possible result that has received less (if any) attention is the effect that the Court’s holding will have on state laws relating to numerous areas including antidiscrimination, insurance coverage, land use and corporations law. There is good reason for this oversight. In Boerne v. Flores, the Supreme Court held that RFRA could not limit state law—so the Court’s holding as to the reach of RFRA will not inhibit the reach of state law. And because this is a statutory holding, and the Court shows no immediate signs of re-incorporating the RFRA test into constitutional doctrine, the effects on First Amendment doctrine (which does limit state law) will be limited.
But there is, nonetheless, a good chance that a loss for the government will affect state regulation. First, in the area of land use, the Religious Land Use and Institutionalized Persons Act (RLUIPA), unlike RFRA, has does (as of now, at least) apply to localities. While there may be textual reasons why RLUIPA could be read differently that do not bear deep excavation, the bottom line is that RLUIPA was basically modeled after RFRA. If corporations can invoke RFRA to escape federal regulation, they may well be able to invoke RLUIPA to escape basic zoning regulation, from which, so far, only churches and religious institutions have so far been exempt.
This morning, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. Adam Liptak of The New York Times provides a helpful analysis of the cases while Robert Barnes at The Washington Post breaks down the “vocally devout justices” and the role religion may play in their decision. For more discussion, watch an ACS briefing on the dual challenges known as the “contraception mandate cases.”
Twenty-three years ago, Anita Hill accused then-Supreme Court nominee Clarence Thomas of sexual harassment. In an interview with Hill, DahliaLithwick at Slate reviews the new documentary Anita and describes how “Hill’s testimony had a huge impact on sexual harassment law, and in the public discourse.”
Officials in Mississippi are waiting for approval from the state supreme court to execute Michelle Byrom, a mentally ill woman accused of murdering her husband. Andrew Cohen at The Atlantic explains why “the case of Michelle Byrom contains the unholy trinity of constitutional flaws sadly so common in these capital cases.”
The Obama administration is expected to propose “an end to the [National Security Agency’s] mass collection of Americans' phone call data.” The Guardian’s Spencer Ackerman has the story.
Karen Tani at Legal History Blog reviews The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story by the late Robert Belton.
As the Supreme Court prepares to hear Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius, Leslie C. Griffin at Hamilton and Griffin on Rights discusses why “Conestoga could provide a more important—and dangerous—precedent than Hobby Lobby.” Walter Dellinger, Member of the ACS Board of Advisors, writes an op-ed for The Washington Post explaining why the Court should “reject claims of religious entitlement that so greatly burden the interests of others.” For more on the “contraception mandate” cases, read Professor Griffin’s ACSblogpost on the Religious Freedom Restoration Act and more.
Just weeks after Arizona Gov. Jan Brewer vetoed legislation that would allow businesses to discriminate on the basis of religion, an attempt in Georgia, to pass a similar bill last Thursday, has failed. Georgia Republican State Sen. Josh McKoon “attempted to attach the measure to two unrelated bills in the state legislature, hoping to get the controversial measure passed on the last day of the session.” Adam Serwer at MSNBC has the story.
Writing for the The New York Times, Member of the ACS Board of Directors Linda Greenhouse comments on the most recent decision from the high court regarding railroad rights-of-way to reveal “how far the Supreme Court should go to acknowledge the real-world context of its decisions.”
The public’s call for more transparency at the high court continues. At Jost On Justice, Kenneth Jost comments on the “Supreme Court’s obsession with secrecy.”
Gerard Magliocca at Concurring Opinions reveals how the “Four Horsemen”—the four conservative justices who opposed President Roosevelt’s New Deal programs from 1932–1937—made it to the Supreme Court.
While the Affordable Care Act’s individual mandate was the center of attention during the first round of constitutional challenges to it, its “contraception mandate” stars in two cases currently before the Supreme Court, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. Under health care reform, large employers must now provide employees with health insurance that covers basic preventive care. For women, basic preventive care includes access to FDA-approved contraception. The Obama administration has totally exempted churches from this requirement, and essentially exempted nonprofits from it, so it really only applies to for-profit corporations. Hobby Lobby Stores, Inc., a chain of arts and crafts stores, and Conestoga Woods Specialties Corp., a cabinet manufacturer, argue that they are religiously opposed to certain forms of contraception and that consequently the contraception mandate violates their religious liberty.
Actually, there are two types of plaintiffs in these cases. First, there are the for-profit corporations who claim that the contraception mandate violates the corporations’ religious rights. Second, there are the owners of the for-profit corporations who claim that the contraception mandate violates their individual religious rights. Both plaintiffs should lose, but for different reasons. The corporations should lose because for-profit corporations do not and should not have religious liberty rights. The owners of the corporations should lose because their claims have no merit.
Starting with the corporate plaintiffs: the reasons individuals and churches are granted religious liberty rights simply do not apply to for-profit corporations. Why do we protect individual religious conscience? Religious people might respond that we protect individual religious conscience so that people can fulfill their obligations to God. Failure to do so can cause great suffering now and in the hereafter. Corporations, of course, cannot not suffer, have no soul, and certainly have no relationship with God. Secular people might respond that we protect people’s decisions about their spirituality because it is a way of respecting their individual autonomy and inherent dignity. But while people are ends in themselves and possess an inviolable dignity, corporations do not. They are merely a means to an end, and possess no inherent dignity that we must respect. In short, religious rights only make sense when applied to actual people. Corporations lack the fundamentally human attributes, such as a relationship with God or inviolable dignity, which justify religious liberty protection.