Five years ago this week, on June 30, 2014, for the first time in the history of the United States, the Supreme Court ruled that some for-profit corporations could, like human beings, exercise religious beliefs and exempt themselves from general laws that violate those beliefs. Five justices bestowed upon a handful of business owners the right to deny thousands of their employees the contraception method of their choice otherwise guaranteed under the Affordable Care Act (ACA). Guess who performed this legal baptism?
Justice Samuel Alito wrote for the majority quintet. His rationale seemed to be:
- The statute at issue, the Religious Freedom Restoration Act of 1993 (RFRA), doesn’t specifically exclude for-profit corporations as protected “persons” who collectively exercise religion and deserve exemption from laws, so the court relies on the legal Dictionary Act, which states: “In determining the meaning of any Act of Congress, unless the context indicates otherwise … the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
- Religious exemption requests are taken at face value — without regard for actual scientific evidence. In the Hobby Lobby case, the religious exemption was requested based on the claim that some forms of contraception are infanticide (Plan B, ella, and IUDs). (Such claims are false. Per the Guttmacher Institute, “The weight of the evidence clearly shows that emergency contraceptives and IUDs are not abortifacients.”)
- The U.S. Department of Health and Human Services (HHS) has not implemented a legally acceptable accommodation for for-profit corporations (our new “persons”). Alito suggested a workaround that the government provide these women contraceptives (with tax dollars) instead. (Subsequent to the decision, an HHS accommodation was reached to allow these closely held, for-profit corporations to use the same opt-out procedure allowed for entities operated by religious groups — e.g., universities, hospitals, and charities).
- This is a narrow decision that won’t open the floodgates of other religious objections to other laws. (More on this later.)
Justice Ruth Bader Ginsburg wrote the forceful, 35-page dissenting opinion, discussed also in this article. RBG’s key points:
- “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”
- “Any decision to use contraceptives made by a woman covered under Hobby Lobby’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.”
- “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”
- “Would the exemption … extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?] … Not much help there for the lower courts bound by today’s decision.”
- “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very risk the [Constitution’s] Establishment Clause was designed to preclude.”
- And yet, the court majority opinion (Alito) relied upon existing precedents holding that “accommodations to religious beliefs or observances … must not significantly impinge on the interests of third parties.”
Now, five year on, as predicted by Justice Ginsburg at the end of her dissent, “The court, I fear, has ventured into a minefield.” Alito’s assurance — that the consequences beyond a smattering of situations related only to some contraceptives would be minimal — has proven false. The Hobby Lobby decision has been commandeered to deny all contraception, attack the LGBTQ community, make a mess of health care administration, and more. Consider these ugly stepchildren:
- A district court judge ruled that a local funeral home was well within its rights to fire a transgender employee because its owner had a religious belief that gender transition violated biblical laws.
- The U.S. Pastors Council and Texas Values filed multiple lawsuits in state and federal court, claiming that Christian businesses and churches have a constitutional right to fire — or not hire — LGBTQ workers.
- Several religious organizations and the University of Notre Dame challenged the ACA contraception mandate.
The ambiguity of what exemptions are legal has created a mess for health care administrators, lawyers, and judges. For those willing to get down in the weeds on these subjects, I suggest 21 pages of articles listed in SCOTUSblog.
To what extent dangerous fallout will persist is still uncertain, but the appointment of justices prone to advantage corporations over human beings doesn’t bode well for us underlings who bleed when pricked. (For example, Citizens United v. Federal Election Commission grants corporations free speech and political spending rights.) The Hobby Lobby decision remains troublesome.
Lest we be too hard on the Supreme quintet, Congress bears much of the blame. It passed the Religious Freedom Restoration Act of 1993 (RFRA), cracking open the door for religion to creep into our presumably secular town square and marketplace. RFRA did not explicitly define the “person” holding religious paper writing beliefs as human beings only, although that was the clear intent, and now the Supremes pried open the crack in that door to tell us that corporations can, indeed, exercise religion. This enabled Alito’s legal judo so business owners could do religion-justified damage to their employees.
Any silver linings here? Yes.The Hobby Lobby decision energized women to run for office and get more women appointed to the bench. Keep it up! It’s also another reason to finally pass the Equal Rights Amendment to add firepower for coming legal wars.
As I write, I can’t help but regret (again) the 2006 retirement of Justice Sandra Day O’Connor, the champion who forced the court to consider real-world consequences to real people — a value that escapes her replacement, Justice Samuel Alito, the Hobby Lobby opinion writer.