Bench Memos

Hobby Lobby—Straightforward Statutory Interpretation

Hobby Lobby has consistently emphasized that its case is one of simple statutory interpretation. It did so in the opening paragraphs of its brief to the Supreme Court—“[o]n the merits, this is one of the most straightforward violations of [RFRA] this Court is likely to see”—and in the opening lines of oral argument. And Justice Kennedy used his opening questions to press precisely this point. This statutory emphasis is important for a number of reasons.

First, it makes the Court’s job much easier. The RFRA questions before the Court are straightforward statutory issues, most of which are already answered by RFRA’s text, other statutes, or the Court’s recent unanimous precedent:

Are family businesses, such as Hobby Lobby, and their owners protected by RFRA? Yes—RFRA protects “persons,” and federal law says that includes both families and their businesses.

Is Hobby Lobby exercising religion? Yes—as Justice Sotomayor indicated, there could hardly be a better candidate than Hobby Lobby—with its religious music, Sunday closings, and evangelistic newspaper ads—for showing how closely held family businesses can exercise religion.

Is Hobby Lobby’s religious exercise sincere and not just a guise to save money at its employees’ expense? Yes—as Justice Kagan pointed out, Hobby Lobby stores “seem like very good employers,” and the government admitted both that it doesn’t question Hobby Lobby’s sincerity and, as Chief Justice Roberts noted, that there’s no financial advantage to Hobby Lobby here.

Is the government substantially burdening that sincere exercise of religion? Yes—compared to past cases, which found a substantial burden from comparatively minor punishment, the massive penalties and huge competitive disadvantages forced on Hobby Lobby are clearly substantial.

Has the government shown that it has a compelling interest in burdening Hobby Lobby’s exercise? No—the government failed to put any evidence in the record proving that it has a compelling interest in forcing Hobby Lobby (which already covers 16 other contraceptives) to pay for the 4 contraceptives that can take a human life, and it has exempted businesses that cover tens of millions of Americans from providing any contraceptives.

Has the government shown that forcing Hobby Lobby to provide coverage is the least restrictive means possible to accomplish its interests? No—the government has obvious alternatives to provide the objectionable drugs and devices to Hobby Lobby’s employees, such as its own insurance exchanges, its long-extant free contraception programs, and the accommodations it created to keep corporations with similar religious objections from having to pay for contraceptives.

In sum, the statutory analysis here is plain.

Second, we know that the parade of horribles trotted out by the government to deny Hobby Lobby’s RFRA rights includes exactly the ones relied on by the Court in Employment Division v. Smith. By enacting RFRA, Congress plainly regarded the parade of horribles as imaginary. So we know that, as a matter of simple statutory interpretation, RFRA’s reach shouldn’t be stunted by the government’s Chicken Little act.

Third, that this is a statutory interpretation case lowers the stakes considerably. In constitutional adjudication, the Court’s ruling would set a rule governing the nation that could only be reversed by the Court itself. Not so with statutes—what Congress hath given, Congress can take away. As Chief Justice Roberts pointed out, Congress can always either amend RFRA or amend the statutes covered by RFRA if it has policy concerns about how RFRA is operating in a given situation. Indeed, RFRA explicitly covers only those statutes that do not clearly declare themselves beyond RFRA’s governance. (Notably, the Affordable Care Act did not so declare.) In the implausible instance in which the sky starts falling, Congress can easily prevent the damage that the government fears.

(I’m blogging from the road, where it’s difficult to add in hyperlinks, so my apologies.)

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