Yesterday, the Obama administration filed its brief as respondent in Conestoga Wood Specialties Corp v. Sebelius, one of the two HHS mandate cases pending in the Supreme Court. (The Obama administration filed its brief as petitioner in Sebelius v. Hobby Lobby Stores a month ago. Its reply brief in that case is due next month.)
I’ve so far reviewed the portions of the brief (pp. 8-10, 18-35) in which the Department of Justice undertakes to contest the proposition that for-profit corporations have religious-liberty protections under the federal Religious Freedom Restoration Act. As I’ll outline in this post, DOJ’s argument is a tawdry exercise in misdirection, evasion, and obfuscation.
1. Much of DOJ’s argument is devoted to trying to smuggle into the threshold question whether for-profit corporations have rights under RFRA the sorts of considerations that properly come into play in applying strict scrutiny to the burdens that the federal government places on exercise of religion. When DOJ claims, for example, that “accommodations” for a for-profit corporation “would visit tangible harm on … the corporation’s employees and their covered dependents” (p. 8; see also pp. 22-25), it is trying to frontload its (badly flawed) claim that imposing the HHS mandate on Conestoga Wood and Hobby Lobby furthers a “compelling governmental interest.” That claim simply has no place in the initial inquiry whether Conestoga Wood and Hobby Lobby are capable of engaging in an exercise of religion.
2. Instead of conducting a straightforward inquiry into whether for-profit corporations are capable of exercising religion, DOJ continues to spin its convoluted and confused argument that the Court may look only to case law that precedes the Court’s 1990 decision in Employment Division v. Smith to determine what Congress meant by the term “exercise of religion” in RFRA. That argument is wrong on many levels. (See Hobby Lobby’s brief, filed yesterday, at pp. 18-22 and the amicus brief of the Ethics and Public Policy Center (my organization), at 6-20.) Even worse, in the course of making its argument, DOJ shows that it simply can’t be trusted:
a. DOJ falsely claims, “There is no indication in RFRA’s text or legislative history that Congress meant the statute” to afford religious-liberty rights to for-profit corporations (p. 19). But the amicus brief filed by law professor Douglas Laycock (on behalf of the Christian Legal Society and other religious- and civil-liberties organizations) exhaustively demonstrates what the amicus brief of the Ethics and Public Policy Center also shows—namely, as Laycock puts it, that “Congress explicitly understood RFRA to protect for-profit corporations and their owners.” There is nothing in RFRA’s text that excludes for-profit corporations from its protections. And DOJ doesn’t even acknowledge, much less try to explain away, the express statements in a House report that make clear that RFRA applies to for-profit corporations. (See Christian Legal Society brief at 20; EPPC brief at 12.)
b. DOJ claims that the “pre-Smith body of law” does not include “any case extending free-exercise rights to for-profit corporations” (p. 19). But that claim is either false or artfully deceptive. As EPPC’s amicus brief demonstrates (pp. 16-20), five justices in the 1961 case of Gallagher v. Crown Kosher Super Market “concluded that the corporate plaintiff in that case had asserted a cognizable burden on free exercise rights” (p. 20).
It’s striking that DOJ invoked Gallagher in its opening Hobby Lobby brief but that, now that its error in doing so has been made manifest, it simply avoids any mention of Gallagher.
3. DOJ makes the straw-man argument that “Congress did not intend RFRA to collapse the distinction” between a corporation and its shareholders (p. 19 (emphasis added)). But (to quote again from EPPC’s amicus brief): “It does no violence to the distinction between a corporation and its owners, directors, or officers to recognize that those who under the applicable state law have the power to control the corporation’s activities can take affirmative steps to commit the corporation to a particular idea (such as a clean environment, support for particular legislation, etc.).” By contrast, DOJ’s “premise that corporations can ascribe to beliefs on all subjects other than religious ones makes no sense.”
4. DOJ claims that Conestoga Wood’s “amici” provide no “logical explication” for their position that publicly traded corporations “would not be in a position to assert a RFRA claim” (p. 21). But EPPC’s amicus brief spells out quite clearly why DOJ’s parade of horribles (with respect to both publicly traded and closely held corporations) is imaginary. DOJ piles on farfetched hypotheticals about “divisive, polarizing proxy battles” (pp. 29-30), supposedly “vexing” problems arising from internal corporate disagreements (p. 31), and “serious entanglement concerns” (pp. 32-33), but these problems are equally illusory.
Tellingly, DOJ offers no response to the far more disturbing implications of its position. As EPPC’s amicus brief puts it:
In the Government’s view of the matter, an incorporated kosher deli could be forced to carry non-kosher goods; an independent Catholic hospital with a lay board could be required to provide abortions; a closely-held market owned by Seventh-day Adventists could be required to open on Saturdays; and an incorporated retail store owned by Muslims could be forced to carry liquor.
5. DOJ’s brief is replete with token expressions of respect for religious believers and religious institutions. Have in mind that this is the same DOJ that argued in the Hosanna-Tabor case that (as the Chief Justice summarized DOJ’s “remarkable view” in his unanimous opinion) “the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers” and that churches are instead limited to the rights that labor unions and social clubs enjoy. Yet DOJ now has the gall to claim that recognizing the religious-liberty rights of closely held corporations and their owners would “have the perverse effect of undermining the special place of religious institutions in our society” (p. 9; see also pp. 28-29).
(I expect to address other parts of DOJ’s brief, but perhaps not before next week.)