This morning the Supreme Court announced its decision on Burwell v. Hobby Lobby, with Justice Alito delivering the majority opinion. The Court affirmed the Tenth Circuit decision, excusing Hobby Lobby and the other corporations represented in the case from the Affordable Care Act’s contraceptive mandate. The store chain and Conestoga Wood Specialties opposed the required coverage of four contraceptive methods they consider abortifacients, which have the potential to terminate an embryo after its conception. Despite anticipation that victory for Hobby Lobby in the case would extend First Amendment rights to corporations, the decision explicitly denies that it does this, and bases its argument on the 1993 Religious Freedom Restoration Act (RFRA) rather than the First Amendment.
The decision fell into four statements. A majority opinion written by Justice Alito is summarized in its conclusion, stating, “The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.” Justice Kennedy wrote a concurring opinion, also drawing the case under the RFRA. The majority opinion calls for the four contraceptive methods in question to either be provided to affected employees via a separate government program or through the same system currently in place currently for dissenting non-profit entities.
Justice Ginsburg, joined in whole by Justice Sotomayor, provided a dissenting opinion. She concluded:
Working for Hobby Lobby or Conestoga…should not deprive employees of the preventative care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so.
Ginsburg’s dissent broadly denied the ability of for-profit corporations to submit lawsuits under RFRA claims, though she also specifically decided the case presented by the corporations to be inadequate on merit.
Justices Kagan and Breyer assented on all points to Ginsburg’s statement, except to her restriction on the RFRA’s application, writing, “We need not and do not decide whether either for-profit corporations for their owners may bring claims under the Religious Freedom Restoration Act of 1993.”
Thus, on the question of the application of corporate personhood to interpretation of RFRA, the split vote is 5-2, not the 5-4 of this particular case. Kagan and Breyer may have felt that the Hobby Lobby suit should have failed, but thought wrangling with corporate personhood was unnecessary. No one, however, was trying to make a First Amendment argument. As Ginsburg phrased it in opening her dissent, “The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion based accommodations so extreme, for our decisions leave no doubt on that score.”
Two questions are considered in the application of the RFRA, which is supposed to prohibit “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.” To deny exceptions, the government must demonstrate the “compelling governmental interest” of the act, along with demonstrating that it is the “least restrictive” means to do so.
The majority assumed that “RFRA was designed to provide very broad protection for religious liberty,” and that a corporation cannot take any action “separate and apart from” the people who run them. Based in part on the Dictionary Act, they considered the “person” of RFRA language to include corporations, and found that the ACA mandate lays a substantial burden on Hobby Lobby et al., both in conscience and financial consequence. The majority statement of the Court didn’t consider corporations to be exclusively, or even essentially, profit-earning entities, further legitimizing claims to expression of conscience on the part of its owners.
The decision accepted the Department of Health and Human Services’ argument that free access to the questioned contraceptives was a “compelling governmental interest,” but denied that HHS had demonstrated the ACA mandate to be the “least restrictive” method achieving that goal. Concluding, it states, “Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”
The minority does not merely dissent on the application of RFRA to corporations, but also on the application of an owner’s religious conviction, which the majority considered outside the Court’s purview, to corporations. Ginsburg wrote, “By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations.”
Besides objecting to the majority suggestion that further taxpayer money be used to provide the abortifacients, the minority opinion argues that there is not a less restrictive alternative means of ensuring that these contraceptive methods are provided for every woman without additional cost.
Alito perhaps points most clearly at the point of contention when he writes, “the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself.” It’s that or, at the very least, the breadth of RFRA, though Kagan and Breyer have attempted to dodge the question. While the majority claims that the contraception question was quite particular and that its decision really only addresses the contraceptive mandate, the minority considers Monday’s statement “a decision of startling breadth” and tantamount to the ability to “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”
Corporate personhood’s relationship to the Bill of Rights didn’t change, but it does seem that the circus has really only just begun.