Underlying Hobby Lobby

by Philip Hamburger
Religious Americans have been politically excluded.

The Supreme Court will soon hear arguments in Hobby Lobby v. Sebelius, which concerns religious objections to HHS regulations. To be precise, should religious objections prevail under the Religious Freedom Restoration Act against HHS regulations that require employers to include coverage for contraception in their health-insurance plans?

But that is only the surface question. Not far below it lurk profound dangers of specialization and exclusion — the risks that the Court will recognize only partial rights in specialized organizations and that it will ignore how the political playing field is slanted against religious Americans.

Specialization
Can government treat specialized organizations as having diminished constitutional rights outside their fields of specialization? Can it conclude, for example, that because Hobby Lobby is a business corporation, it has diminished interests in religion, and therefore in religious liberty? From this perspective, organizations devoted to some specialized paths have reduced interests in constitutional rights that the government associates with other paths. Churches, for example, have full religious rights, but not full speech rights, and businesses have complete speech rights, but not complete religious rights.

The effect of this kind of distinction is to curtail the constitutional rights (and associated statutory rights) of Americans when they associate with one another in organizations.

Why is this so troubling? Standing alone, individuals in an egalitarian society are weak in relation to government. But when they associate with one another, as Tocqueville observed, they acquire a shared strength, including the resources, capacity, and courage to develop public opinion independent of government and thereby to defend their freedom.

It would be very dangerous for the Supreme Court to accede to the government’s assumption that specialized organizations are often only specialized persons with only specialized constitutional rights — that is, only partial persons with only partial rights. If government can act on this vision of specialization, it can divide and undermine civil society.

The U.S. Constitution fortunately leaves no room for fractions of persons and fractions of rights; it does not divide up persons and their rights according to their specialized endeavors. And this is essential for the structural protection of liberty, for rights enjoy the broadest support when they belong equally to all legal persons, regardless of their specialized or other identity.

For multiple reasons — social, political, and legal — the Supreme Court in Hobby Lobby needs to avoid legitimizing any further slicing and dicing of persons and their rights. It must not allow government to divvy up constitutional (and associated statutory) rights on grounds of specialization, as if Americans who associate become only fractions of themselves, with only fractions of their rights. Instead, the Court should protect the rights of all Americans and all of their associations, without regard to their specialization.

Exclusion
A second underlying question in the Hobby Lobby case concerns exclusion from the political process. When individuals or groups are denied participation, or equal participation, in the political process, the laws are apt to become oppressive as to them. This poses a serious danger for religious liberty.

As recognized by the Supreme Court in its decision in Employment Division v. Smith (1990), the Free Exercise clause does not generally guarantee a freedom from equal laws on account of one’s religion. Instead, it secures a freedom under equal laws, regardless of one’s religion. In other words, it provides for equality rather than exemption.

Even equal laws, however, can be oppressive. In light of this, the Court in Smith recognized the importance of the political process. Justice Scalia concluded his opinion by observing that the constitutional freedom of religious equality must be understood in the context of the political freedom to seek broader, statutory protections for religion. But religious Americans are severely constrained in their freedom to seek legislative relief from laws that burden religious practice. This exclusion happens in two ways.

First, it arises from the growth of administrative power. Administrative lawmaking is designed to be “rational” and “scientific” and so from the outset tends to be unsympathetic to religious concerns. Further, Americans cannot vote for or against their administrative lawmakers, and thus religious Americans are excluded from the political process in which they ordinarily could temper the religious burdens of law.

Second, religious Americans are excluded from the political process by section 501(c)(3) of the Internal Revenue Code, which restricts religious, educational, and charitable organizations from campaigning and from much petitioning of government. This exclusion singles out religious and other idealistic organizations for restrictions on their constitutional rights of political speech and of assembling to petition, and it thereby deprives religious Americans of essential channels for minimizing the religious burdens of statutory and administrative constraints.

Of course, religious groups with beliefs aligned with popular political opinions can often secure some legislative protections, as in the Religious Freedom Restoration Act. But section 501(c)(3) is especially costly for religious minorities who are theologically orthodox, who believe they must work through church hierarchies, or who otherwise have beliefs unaligned with popular political views. Such Americans often have difficulty securing national political allies and therefore tend to be especially dependent on their churches for engaging in the political process to protect their religious interests.

Both forms of exclusion make a mockery of the nation’s much-vaunted equality. The First Amendment, according to the Supreme Court, guarantees religious Americans legal equality. At the same time, the law substantially deprives religious Americans of the political participation through which they ordinarily would resist laws that, although equal, press against their beliefs.

Religious liberty thus comes with an unexpected slant. Courts assume that America offers a flat or level legal landscape, a broad and equitable surface on which all Americans can participate equally, regardless of their religion. The underlying exclusion, however, tilts the entire playing field so that apparently equal laws slant against religion.

Ultimately, the oppressive consequences will require the Supreme Court to reconsider the modes of exclusion. Meanwhile, the Court at least should recognize that administrative burdens on religion are different from statutory burdens. Where administrative lawmaking, such as that at issue in Hobby Lobby, bears down hard on religion, this is not a coincidence. On the contrary, it is exactly what one would expect.

— Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. For more on the exclusion principle and its implications, see his paper “Equality and Exclusion: Religious Liberty and Political Process.”