Bench Memos

Hobby Lobby Ruling

Here’s a quick summary of (and a few comments on) Justice Alito’s majority opinion in Hobby Lobby:

1. For-profit corporations are persons protected under RFRA. (Pp. 16-20.)

2. Closely held for-profit corporations are capable of engaging in an exercise of religion protected by RFRA. (It “seems unlikely” that publicly traded corporations would “often” assert RFRA claims, but no need to decide whether they can.) (Pp. 20-31.)

3. The HHS mandate substantially burdens the exercise of religion by the Hahns, the Greens, and their companies. (Pp. 31-38.)

            a. Severe economic consequences.

            b. We need not reach novel claim that companies would be better off forcing their employees into the exchanges. But if we did reach the claim, we wouldn’t find it persuasive. (Pp. 32-38.)

4. We need not decide whether the HHS mandate is in furtherance of a compelling governmental interest. Even if we assume it is, the mandate flunks the least-restrictive-means test. (Pp. 38-40.)

5. The mandate flunks the least-restrictive-means test. (Pp. 39-45.)

The least-restrictive-means test is “exceptionally demanding.” (P. 39.)

The most straightforward way for the government to achieve its desired goal would be to pay the cost of the objected-to contraceptives itself. We see nothing in RFRA that supports the argument that the government can’t be required to create entirely new programs in order to comply with RFRA. (Pp. 41-43.)

We need not rely on the option of a new government-funded program because HHS has already demonstrated that it has at its disposal an approach that is less restrictive of religious liberty—the accommodation for religious nonprofits. “We do not decide today whether [the accommodation] complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” (Emphasis added.)

Commentary: There will be much parsing of this passage. I think that some mandate opponents, worried that a defeat is lying in this victory, will misread this passage. What I think that Alito is saying is that the objection to the accommodation is not to “providing insurance coverage” per se but rather to providing a self-certification that has the consequences of making the certifier morally complicit in the provision of objected-to drugs and devices.* This issue is being, and will continue to be litigated, in the pending suits against the accommodation.

Indeed, it bears highlighting that the majority, in a footnote (footnote 9 on page 10) has offered an expansive reading of the relief that it afforded the Little Sisters of the Poor in the Little Sisters’ challenge to the accommodation: That order means that all “eligible organizations” must “be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators.” Together with the Court’s sound understanding of substantial burden, that proposition ought to provide gives high hopes for a victory to the challengers to the accommodation.  

(In his brief concurrence, Justice Kennedy cites the passage above from the majority opinion in stating that the accommodation “does not impinge on the plaintiffs’ religious beliefs.” In context (given that Kennedy joins Alito’s opinion and does nothing more than cite the passage above), I think that it’s clear that he is saying nothing more than Alito is saying: only that the religious beliefs that plaintiffs have set forth in this case against providing insurance coverage wouldn’t be impinged by the accommodation.)

6. This ruling will not lead to the parade of horribles that the dissent trots out. (Pp. 45-49.)

* Justice Ginsburg, in her wildly overwrought dissent, offers a compatible reading on this narrow point, as she asserts that the government has shown that there is no less restrictive means that would “satisfy the challengers’ religious objections to providing insurance coverage for certain contraceptives.” (Dissent at 27-28.) 

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