Interpreting Hobby Lobby to not harm LGBT civil rights.

AuthorSamar, Vincent J.
PositionSymposium on LGBT Rights

In this essay I argue that the dual obligations of the political branches to provide for the common good, while at the same time protecting the free exercise of religion, can be achieved only if the Supreme Court's recent decision in Burwell v. Hobby Lobby Stores (1) is interpreted narrowly along the lines suggested by Justice Kennedy in his concurring opinion. An interpretative problem arises because the logic of Justice Alito's majority opinion could be read to suggest not just that any intrusion on religious freedom by laws of general applicability requires, under the Court's interpretation of the Religious Freedom Restoration Act of 1993 (RFRA), the presence of a compelling state interest and that the intrusion be the least restrictive possible, but that the least restrictive prong in effect, obviates any intrusion whatsoever on the private sector. (2) This essay hopes to make clear why this broader interpretation of the opinion is not warranted, notwithstanding the logic of Justice Alito's opinion.

Section I briefly describes what the Court said in Hobby Lobby, what some of the concerns of the dissent were, and why the view expressed by Justice Kennedy in his concurring opinion--which provided the necessary fifth vote in the case--is so important. Section II discusses what Congress meant when it passed RFRA and why courts need to ask that question. Section III describes the concerns of the LGBT civil rights community and why those concerns should rise to a compelling state interest. Section IV presents the practical problem involved in trying to provide adequate civil rights legislation while holding such legislation hostage as the least restrictive intrusion on religious freedom. Finally, Section V focuses on the need for the government to protect equality as a basic right.


    Hobby Lobby is the name of three cases consolidated before the United States Supreme Court considering whether a regulation affecting employee health plans, which were promulgated by the Department of Health and Human Services (HHS) under the Affordable Care Act (ACA), violated the employers' religious freedom. The regulation required for-profit employers, who were not grandfathered in and who employed more than fifty employees, "to provide 'coverage, without cost sharing' for '[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.'" (3) The employers in these cases alleged that because four of the approved contraceptive methods prevent a fertilized egg from adhering to a uterus, the regulation makes them complicit in providing abortions in violation of their religious beliefs. (4)

    The Supreme Court, per Justice Alito's majority opinion, found that Congress adopted RFRA following the Court's prior decision in Employment Division Department of Human Resources of Oregon, v. Smith, (5) which held that the First Amendment was not violated when a state denies unemployment benefits to Native Americans who lose their jobs following ingestion of peyote as part of a religious ritual. (6) The Smith Court held that the state did not need to establish a compelling interest under the First Amendment if its intrusion on the free exercises of religion was based on a law of general applicability that on its face was religiously neutral. (7)

    According to the Court, Congress, in passing RFRA, wanted to reaffirm a previously held view that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless it "demonstrates that application of the burden to the person--(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." (8) Moreover, RFRA, as adopted by Congress in 1993, specifically states that it applies to all federal and state law and the implementation of that law, whether statutory or otherwise, and whether adopted before or after enactment of the Act. That, however, has not been fully the law for some time: "[a]s applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency's work, but in attempting to regulate the States and their subdivisions, Congress relied on its power under section 5 of the Fourteenth Amendment to enforce the First Amendment." (9) In City of Boerne v. Flores, the Court "held that Congress had overstepped its Section 5 authority because '[t]he stringent test RFRA demands' 'far exceeded] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.'" (10) Consequently, only those federal legislative and regulatory intrusions on the free exercise of religion that meet the strict scrutiny requirements of RFRA would be allowed unless the language of the legislation specifically disavows application of RFRA.

    Thus, RFRA was designed to raise a profound challenge to all current and future federal legislation designed to serve the common good, except where a post-RFRA statute specifically disavows its application. This was evidenced in Hobby Lobby. The corporation's owners used RFRA to challenge the HHS contraception requirement arguing that the requirement did not pass the statutory test required in RFRA. Beyond that, Hobby Lobby expanded who would be permitted to bring such a challenge to laws of general applicability. This was apparent from the Court's recognition that a closely held corporation, such as Hobby Lobby, can "exercise religion" and the Court's determination that Congress employed the legal fiction that corporations are "persons" under RFRA. (11)

    The Court stated that "[a] corporation is simply a form of organization used by human beings to achieve desired ends.... When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people." (12) On this point two of the dissenters, Justices Ginsberg and Sotomayor, argued that for-profit corporations differ fundamentally from nonprofit corporations: "Workers who sustain the operations of those [for-profit] corporations commonly are not drawn from one religious community." (13) Moreover, nothing in the legislative history of RFRA indicates Congress ever intended that the Act should apply to for-profit corporations. (14) Justices Kagan and Breyer, who also dissented, found no need to reach this issue because, in their view, "the plaintiffs' challenge to the contraceptive requirement fails on the merits." (15) From these justices points of view that conclusion could be based, at least in part, on the majority's own willingness to "assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA...," (16) Where all the dissenters disagreed with the majority concerned the issue of whether HHS's regulation met the second tenet of RFRA, which requires that the intrusion be "the least restrictive means of furthering that compelling governmental interest." (17)

    To the contrary, the majority claimed that "[t]he 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." (18) However, the dissent argued that:

    the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers' religious objections to providing insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA's contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. (19) As Justice Ginsburg's opinion noted, "Impeding women's receipt of benefits 'by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit' was scarcely what Congress contemplated." (20) Additionally, Justice Ginsburg questioned, "[W]here is the stopping point to the 'let the government pay' alternative?" (21) One senses in Justice Ginsburg's dissent the dual fears that women will now be forced to meet hurdles by virtue of their sex and that the approach could be a pathway to undoing a number of civil liberty protections that, over the years, Congress and states have provided for women and others.

    The dissent saw the majority's position as potentially opening the floodgates to a very wide range of legal challenges to laws of general applicability whenever they occur if it could be argued that compliance could implicate a religious belief of the owners. That, in effect, would mean that closely held companies providing all kinds of services would now be in a position to claim an exemption from having to provide their services to those whose actions they might have a religious disagreement with. For example, businesses providing reception halls, catering services, photography services, day care services, and so forth could now claim an exemption from having to provide these services, without fear of violating anti-discrimination statutes. Such discrimination could apply to individuals or groups, such as gays or lesbians putting together a same-sex wedding or raising a family or even employees suffering gender dysphoria. This could keep employees from transitioning because they may not be able to keep their job or have their employer's health plan pick up the medical costs of their health care. Moreover, this doesn't even consider that there may be large areas of the country where only one or two businesses are providing these needed services because the areas are rural and less populated, and thus, if exemptions are allowed, the people in...

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