“[T]he ‘exercise of religion’ involves ‘not only belief and profession but the performance of (or abstention from) physical acts’ that are ‘engaged in for religious reasons.’
The decision involved two consolidated cases, Burwell v. Hobby Lobby and Conestoga Wood v. Burwell. Many people were confused because they knew the cases as Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius. It made sense, since Kathleen Sebelius was the U.S. Secretary of Health and Human Services when this whole mess began, but the name change reflects the fact that she stepped down and was replaced by Sylvia Matthews Burwell just before the decision was handed down. The name will not change again when another secretary is sworn in as the decision has been issued.
Whether the Department of Health and Human Services (HHS) violated the Religious Freedom Restoration Act (RFRA) by forcing closely-held corporations to pay for health coverage of contraceptive methods that violate the corporations’ sincerely held religious beliefs.
HHS violated RFRA by substantially burdening the free exercise of religion of these closely-held corporations and failing to use the “least restrictive means of serving a compelling government interest.”
The “Patient Protection and Affordable Care Act” (a.k.a., ObamaCare) “generally requires employers with 50 or more full-time employees to offer ‘a group health plan or group health insurance coverage’ that provides ‘minimum essential coverage’” or pay a significant fine. As part of the “minimum essential coverage,” the law required “preventive care and screenings” for women “without cost sharing.” HHS determined that that “preventive care” for women included “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” This mandate, commonly known as the “contraceptive mandate,” included four drugs that may cause an abortion.
NOTE: The fact that these methods can cause the destruction of an embryo is recognized by the manufacturers themselves; therefore, the issue was not in dispute in the case — as much as the media and pro-abortion advocates wanted it to be.
The methods may prevent the implantation of a fertilized egg, and that practice violates the religious beliefs of Hobby Lobby and Conestoga Wood, owned by Christians who believe that life begins at conception and who are, therefore, against the practice of abortion. These companies’ sincerely held religious convictions were never questioned by anyone in the case.
It is also important to note that the government recognized that there was a moral, religious problem with its demands. That is why it exempted churches completely from the mandate and provided an “accommodation” for religious groups so they wouldn’t have to pay for something that was in violation of their religious convictions.
Still, it refused to extend that “accommodation” to closely held corporations, like Hobby Lobby and Conestoga Wood.
Key Findings of the Majority (Justice Samuel Alito wrote the opinion of the Court, joined by Chief Justice Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas).
- The Court found that the owners of closely held corporations do not lose RFRA protections when they decide to incorporate.
- The government argued that for-profit corporations cannot exercise religions because they are not persons, even as it recognized that non-profit corporations did exercise religion. The Court found that Congress, in fact, “included corporations within RFRA’s definition of ‘persons,’” and that “No known understanding of the term ‘person’ includes some but not all corporations.”
- “When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of [the owners]” — the Green family, in the case of Hobby Lobby, and the Hahn family for Conestoga Wood.
- “[P]rotecting the free-exercise rights of corporations … protects the religious liberty of the humans who own and control those companies. … Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
- “[C]orporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so.” Hobby Lobby, for example, closes on Sunday out of deep religious conviction and to the loss of possible profits.
- The HHS mandate substantially burdens their exercise of religion. “Because the contraceptive mandate forces them to pay an enormous sum of money — as much as $475 million per year in the case of Hobby Lobby — if they insist on providing health coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.”
- “[T]he ‘exercise of religion’ involves ‘not only belief and profession but the performance of (or abstention from) physical acts’ that are ‘engaged in for religious reasons.’ … [A] law that ‘operates so as to make the practice of … religious beliefs more expensive’ in the context of business activities imposes a burden on the exercise of religion.”
- The Court assumed arguendo the government had a compelling interest. “We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA …”
- The Court concentrated on the “least restrictive means” requirement under RFRA. “HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases.”
- The Court noticed the “accommodation” provided to religious non-profits and concluded, “HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.”
- It, therefore, concluded that other least restrictive means were available. There was no reason to insist on violating the religious freedom of closely held corporations.
- The Court does not address the constitutionality of the accommodation as applied to others, like the Little Sisters of the Poor. “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.”
- No women would lose access to any contraception as a result of the Court’s ruling. “The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”
Justice Kennedy Concurring
Justice Anthony Kennedy wrote a concurring opinion stressing “the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.”
His description of the fundamental freedom to the free exercise of religion is worth highlighting in its entirety:
In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.
Major Dissent (Written by Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor and Justices Stephen Breyer, and Elena Kagan, except in one part as noted)
The dissent criticizes the majority for an opinion of “startling breadth,” the attempt at specificity and clarity from both the majority and concurring opinion notwithstanding. “[T]he Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs,” Ginsburg wrote. But the majority specifically said that each case would be taken on its own, allowing the Court to make the proper assessment of the different interest at play.
To the dissent, this case is about women’s rights and equality. It seems their judgment would be in favor of “women’s rights” no matter the amount of the burden on religious liberty. “Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.” It is fair to say that the weight the dissent gives to “women’s rights” drives it to total hysteria. The accommodation sought by Hobby Lobby, “would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.” But of course, there is not a sliver of evidence of these “legions.” No one is denied access if all the Court is talking about is who will pay for the abortifacients, not whether they can obtain them.
The dissent implies the plaintiffs rely on RFRA, “lacking a tenable claim under the Free Exercise Clause,” but this is absolutely incorrect. Both families sued HHS “under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate …” The cannon of constitutional avoidance, which allows courts to avoid constitutional issues where statutory relief is possible, focused the question on RFRA, but the Green and Hahn family most certainly argued this was a complete violation of their First Amendment Free Exercise rights. The Court simply did not address their First Amendment claim.
Justices Ginsburg and Sotomayor were alone in asserting the corporations are not “persons” for RFRA purposes. They do recognize that precedent suggest that they are persons, but, “The suggestion is barely there,” they said. Their claim is so outrageous it is no wonder that almost no one joins them, for Ginsburg writes that, “Religious organizations exist to foster the interests of persons subscribing to the same religious faith.” How outrageous is that? “Again, the Court forgets that religious organizations exist to serve a community of believers,” she reiterated.
Frankly, I have no idea where Justice Ginsburg comes up with such a radical idea. Religious organizations in general want to serve everyone, not just those of their own religious faith. Do the Little Sisters of the Poor ask an elderly person what their faith is before providing food to them? Does anyone’s church food pantry ministry? This simply shows the immense disconnect some Justices have with people of faith. They have apparently never heard of the parable of the Good Samaritan, much less understand its implications. They make that argument in order to justify their acceptance of a religious non-profit corporation’s ability to exercise their religion and reject a for-profit corporation’s ability to do the same.
The dissent is so frustrated; it wonders why the majority does not address cases that are not before the Court. It criticizes them for not offering “any instruction on how to resolve the disputes that may crop up among corporate owners over religious values and accommodations.”
They agree “that the Green and Hahn families’ religious convictions regarding contraception are sincerely held,” but do not believe they are substantially burdened. “I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.” This is an amazing claim considering the families believe they are helping to terminate a human life. Besides, even if substantially burdened, the government compelling interest can overcome anything in the dissent’s mind.
Breyer and Kagan Dissent
As mentioned previously, Justice Breyer and Kagan write to disassociate themselves from the major dissent’s view that for-profit corporations cannot bring claims under RFRA. “We need not and do not decide whether either for-profit corporation or their owners may bring claims under [RFRA].”