Bench Memos

NRO’s home for judicial news and analysis.

A Big Day for Religious Liberty in Hobby Lobby & Conestoga Wood


This morning the Supreme Court voted 5–4 to relieve Christian business owners of their legal burden to provide their employees drugs which, according to their religious beliefs, implicate them in the taking of human life. With Justice Alito writing, the majority (which also included Roberts, Scalia, Thomas, and Kennedy) set out a solid opinion making no groundbreaking or sweeping claims. This is a solid victory for religious freedom.

The businesses and their owners were challenging a regulation by the Department of Health and Human Services that required them to provide several forms of contraception that would have violated their religious briefs. These cases were brought by Hobby Lobby Stores, Inc. and its owners, the Green family, as well as Conestoga Wood Specialties and its owners, the Hahn family. (For simplicity, I will refer to Hobby Lobby as a stand-in for all of the plaintiffs.)

Hobby Lobby brought its claims under the 1993 Religious Freedom Restoration Act, also known as RFRA (pronounced riff-rah), which imposed strict scrutiny on all federal laws that created a substantial burden on religious exercise. RFRA passed by overwhelming bipartisan majorities and was signed into law by President Bill Clinton, and was designed to ensure that the government could not steamroll religious beliefs without providing a compelling reason. It was expressly directed at Justice Scalia’s opinion in Employment Division v. Smith, which said that neutral and generally applicable laws receive rational-basis review even if they substantially burden religious exercise.

In Parts I and II, Justice Alito gives a brief history of the case. The Affordable Care Act, sometimes called “Obamacare,” told HHS to develop a “preventive services” mandate for certain employer plans, but the ACA never made reference to contraceptives. HHS then mandated “preventive services” coverage that included 20 different forms of contraception. The plaintiffs, who object on religious grounds to 4 of the 20 contraceptives, brought suit to obtain an exemption from requiring those four.

Justice Alito explains in Part III that RFRA clearly covers the plaintiffs’ claim. The legal argument is really basic stuff: RFRA refers to substantial burdens on a “person,” the Dictionary Act defines “person” in federal law to include natural persons and corporations, ergo RFRA covers Hobby Lobby. Yes, it’s that simple. It took less than a page. But the government had insisted that RFRA couldn’t cover for-profit corporations, which it deemed incapable of exercising religion at all. This is puzzling, and as Alito observes, nonprofit corporations can be protected by RFRA, so this can’t make the difference. Alito then dispenses with the argument that the profit-making objective renders them irreligious, both with reference to prior case law and with several observations about the use of for-profit entities for purposes other than making money. If for-profit entities can pursue non-religious objectives, why can’t they pursue religious ones as well?  

Part IV concludes that the HHS mandate constitutes a “substantial burden,” which triggers strict scrutiny under RFRA. The burden on these companies is substantial, potentially costing $26 million in penalties against Hobby Lobby if they were to drop insurance coverage altogether (something their religious beliefs would not allow them to do). In any event, Justice Alito notes, it’s not the Supreme Court’s place to give a binding national answer to hotly contested moral and philosophical questions of moral responsibility and causation. (Can you even imagine what that would look like?)

Part V then evaluates the strict scrutiny prong of the RFRA analysis. Assuming without deciding that the government’s interest is compelling, the Court holds that the HHS mandate violates the least-restrictive-means test. Most simply, the government could have decided to provide free contraceptives directly to the insureds without implicating the employers at all. HHS could alternatively roll objecting employers like Hobby Lobby into an existing accommodation program adopted for nonprofits like the Little Sisters of the Poor. 

The last section of Part V is especially interesting because it is primarily directed at rebutting the claims of the three dissents. I won’t summarize them all now, but it’s worth reading, if for nothing more than to understand the parade of horribles being trotted out even as I write this.

Justice Kennedy’s concurrence starts with the important observation that “it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by [Justice Ginsburg’s] respectful and powerful dissent.” Kennedy then echoes his own language from the introduction to his majority opinion in Lawrence v. Texas, writing that for religious persons, free exercise “is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.” It then recedes into technicalities, focusing on the mechanics of providing an accommodation to the for-profit entities, just as the government has done for the nonprofits.

Justice Ginsburg’s dissent is sort of like an art film directed by a French existentialist: long, dark, and ultimately disappointing. There’s a lot to disagree with here, so I will be brief. It would have decided virtually every issue in favor of the government.

Joined by Justices Sotomayor and (in part) Justices Breyer and Kagan, the opinion’s introduction reads like a list of left-wing talking points. It begins by wrongly asserting that as a result of this decision, corporations can “opt out” of laws inconsistent with their owners’ religion. That’s not even remotely true; the corporation would still need to show that the burden doesn’t meet strict scrutiny. Even though the majority rests its decision solely on RFRA, the dissent goes out of its way to insist that Smith would apply to the constitutional claims. In addition, the dissent hangs its hat on a “hurts third parties” argument that allowing religious exemptions can’t be allowed to burden third parties. But as Justice Alito points out in the majority opinion, that sort of scheme would make it easy for the government to completely undermine religious liberty by couching all questionable legislation in the form of benefits provided to third parties.

Most disappointing is Justice Ginsburg’s strong implication that RFRA itself is a problem because it reduces the ability of the government to do what it wants. She doesn’t say exactly that, of course, but her arguments against RFRA’s individualized inquiry sound eerily like the sort of thing that Congress was trying to eliminate by passing RFRA. Justice Brennan, a historical champion of individualized religious liberty, would be disappointed.

The dissenting opinions of Justices Breyer and Kagan, interestingly, would have reserved the question of whether for-profit corporations or their owners could bring claims under RFRA. I suspect it’s because they realize what a jam such a holding would create for small business owners. This division suggests that the liberal justices don’t quite know what to make of people using their businesses for religious ends. If so, they’re out of touch with the millions of Americans who practice their faith seven days a week, and not just on Fridays, Saturdays, or Sundays.

Tags: Hobby Lobby


Sign up for free NRO e-mails today:

Subscribe to National Review