WASHINGTON, D.C. — On June 30, the Supreme Court held 5-to-4 that President Barack Obama’s HHS contraceptive mandate violates the Religious Freedom Restoration Act (RFRA). Although the ruling in Burwell v. Hobby Lobby only applies to a relatively small number of employers, the challenge was brought exclusively for that purpose, and its broad implications are a resounding victory for the challengers.
As Breitbart News previously reported, this was a challenge brought by two Christian-owned businesses: Hobby Lobby, represented by the Becket Fund, and Conestoga Wood Specialties, represented by Alliance Defending Freedom (ADF).
The Affordable Care Act (ACA) requires employers providing insurance to include “preventive care.” Justice Samuel Alito wrote for the Court that “Congress itself, however, did not specify what types of preventive care must be covered.”
The Obama administration declared through executive action that “preventive care” encompasses birth control, including four types that actually cause abortion by terminating an embryo. Hobby Lobby and Conestoga objected on religious grounds and filed suit.
Their owners seek to run their businesses consistent with their Christian beliefs. For example, Hobby Lobby’s statement of purpose includes “honoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.”
What the Supreme Court Decided
As Alito began for the five-justice majority consisting of the Court’s conservatives and moderates:
RFRA prohibits the Government from substantially burdening a person’s exercise of religion even if the burden results from a rule of generally applicability unless the Government demonstrates [it]… (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
Alito explained, “RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required” under the First Amendment’s Free Exercise of Religion Clause. (Conservative scholars argue the Court has interpreted the Free Exercise Clause more narrowly than its original meaning, and that RFRA just restores the original protections.)
The Supreme Court began by holding that organizations can assert RFRA claims, reasoning:
Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It includes corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends…
Such legal protections are not an end in themselves, though. As Alito further explained:
When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people… And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
The Court noted that Congress provides in the very first section of federal law, 1 U.S.C. § 1, that “person” includes corporations and other business forms. Therefore these companies could assert RFRA claims, and the Court proceeded to decide the merits of the case.
Alito quotes previous Court precedent, which held that “the exercise of religion involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious purposes.”
Evidently realizing that the Court was unlikely to rule that no corporations could exercise religion–since most churches and synagogues are incorporated–the Obama administration had argued that if such protections exist at all, they only exist for nonprofit organizations. Alito brushed aside that argument, showing many examples of corporate law to prove neither Congress nor the Supreme Court have ever recognized any difference denying protection to for-profit companies.
Finally, HHS argued that it is difficult or impossible “to ascertain the sincere beliefs of a corporation.” Alito responded that the Court was not today considering publicly-traded companies–for which it might be more difficult to determine the corporation’s beliefs–and was only ruling on companies that are closely held by a family or small group of owners who all share the same religious faith.
The Court then considered the religious beliefs at issue, writing:
As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.
As to the consequence of that decision, the Court found, “If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe.” Specifically, the fines would be $1.3 million per day for Hobby Lobby–$475 million per year.
Having held that the regulation was a substantial burden on the companies’ (and owners’) religious beliefs, the justices then considered whether the HHS contraceptive rule fails RFRA’s “strict scrutiny” test of being the least restrictive means to achieve a truly compelling public interest.
The Court rejected the argument raised by some outside groups in amicus (“friend of the court”) briefs that since the penalty for not providing insurance at all is $2,000 per employee, per year, that these two companies should do that instead.
Alito responded, “We doubt that the Congress that enacted RFRA–or, for that matter, the ACA–would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.”
In the only aspect of the opinion that would disappoint conservatives, the majority continued, “We will assume that the interest in guaranteeing cost-free access to… contraceptive[s]… is compelling within the meaning of RFRA.”
It’s possible one of the five justices disagreed with the others on that point. So by assuming this point without deciding it, the Court did not issue any holding that would be binding precedent in a future case or in the lower courts.
But moving on the second prong of what RFRA requires, the Court found the HHS contraceptive mandate lacking:
The least-restrictive means standard is exceptionally demanding, and it is not satisfied here. 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.
If nothing else, the federal government could provide these four drugs itself:
The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.
Therefore HHS’s contraception mandate was not “narrowly tailored”–that is, the least restrictive means–of ensuring birth-control access. So it is illegal under RFRA.
Justice Anthony Kennedy fully joined the Court’s opinion, but wrote separately to emphasize a couple points:
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 a 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.
Yet with a statement that will infuriate constitutional lawyers and scholars seeking to predict how he will act in future cases, Kennedy then moderated his rhetoric, saying:
Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.
Justice Ruth Bader Ginsburg wrote the primary dissent for the four liberal justices. She began, “In a decision of startling breadth, the 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.”
To that point, Kennedy goes out of his way in his concurring opinion to begin it with, “At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it” by Ginsburg.
But the 81-year-old leader of the Court’s liberal wing was not done, as Ginsburg added: “The Court does not pretend that the First Amendment’s Free Exercise Clause demands religious-based accommodations so extreme, for our decisions leave no doubt on that score.” Future cases may ask the Court to reconsider those decisions.
She concludes her dissent, “I would confine religious exemptions under [RFRA] to organizations formed for a religious purpose, and not engaged substantially in the exchange of goods or services for money…”
To this, Alito in his majority opinion responds that “the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself.” He concludes, “The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”
What this Means for the Future–Including 2016
There are many implications for this decision.
First, it reaffirms the very broad reach of RFRA to protect religious liberty against federal power. It does not apply to the states (the Supreme Court rightly–and unanimously–held in its 1997 case City of Boerne v. Flores that any application of RFRA to the states would violate the Fourteenth Amendment), but it can be asserted against any regulation or executive action from the Obama administration or future presidents.
Second, it bodes well for other HHS contraceptive mandate challenges pending in the lower courts. Entities like the University of Notre Dame (full disclosure: my alma mater), the Little Sisters of the Poor (Catholic nuns), and the organization of Evangelical leader Dr. James Dobson all have pending challenges.
They object to having to certify that they religiously object to birth control in order to qualify for the religious-organization exemption to the mandate, because signing the certification transfers the mandate to an insurance company that then must pay for the same coverage.
These institutions thus argue that forcing them to sign the certification to avoid the mandate is a substantial burden on their faith, because they thereby obligate someone else to still pay for something those religious institutions consider participating in abortion. Although yesterday’s Hobby Lobby decision does not guarantee victory in these other challenges, it shows a majority of the Court is sympathetic to such arguments.
Third, it continues the trend it began with its Hosanna-Tabor case in 2012 (another Becket base) and on May 5 of this year in Town of Greece v. Galloway (another ADF case) of giving broad scope to religious liberty as a fundamental right.
This may all come to an epic battle in 2015, when the Supreme Court is likely to finally take Mt. Soledad Memorial Association v. Trunk, the case over the Latin cross atop the San Diego war memorial that the Supreme Court sent back to the Ninth Circuit federal appeals court yesterday for one final hearing. The petitioner there is represented by Allyson Ho of Morgan Lewis and Kelley Shackelford’s team at Liberty Institute.
And fourth, it shows there are five votes on the Supreme Court to consider additional challenges to Obamacare. The biggest regulatory challenge will be over the IRS subsidy rule for tax subsidies to purchase Obamacare insurance on state exchanges, without which the ACA is likely crippled. That issue is expected to reach the Court early in 2015. And there are also constitutional challenges to other parts of Obamacare as well, which would likely be offered to the Court by late 2015.
Media commentary casting this as anything other than a major victory for conservatives is either uninformed or deliberate spin. This was never a challenge to any other aspect of Obamacare; some such challenges are currently underway in the lower courts. This was a religious-liberty objection to a single Obamacare regulation, one in which an enormously important freedom–one of the fundamental freedoms upon which this nation was founded–was at serious risk.
And people of faith won. The only concern for people of faith is whether the membership of the Supreme Court will change in a faith-friendly direction in coming years, which will turn on whom the American people elect as president in 2016.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.