Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 1

Last week’s Seventh Circuit ruling in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius contains two competing comprehensive opinions on whether the HHS mandate violates the plaintiffs’ rights under the federal Religious Freedom Restoration Act. In a series of posts that address the key points of division, I’m going to present and discuss Judge Diane Sykes’s majority opinion (in favor of plaintiffs) and Judge Ilana Rovner’s dissent.

Let’s start with the questions whether each plaintiff corporation (1) is a person under RFRA, and (2) is engaged in an exercise of religion when it refuses to provide health insurance that covers contraceptives.

Judge Sykes observes that RFRA itself doesn’t define person and that the Dictionary Act’s definition of the term—which includes corporations “unless the context indicates otherwise”—therefore applies. Because even the Obama administration concedes that some corporations (i.e., religious corporations) have rights under RFRA, it’s clear that corporations aren’t categorically excluded from RFRA. Therefore, the general Dictionary Act definition of person as including corporations governs. (Pp. 36-38.) There is no statutory basis for defining the term to include only those corporations that are religiously affiliated nonprofit corporations. (Pp. 38-46.)

Further, continues Sykes, “unless there is something disabling about mixing profit-seeking and religious practice, it follows that a faith-based, for-profit corporation can claim free-exercise protection to the extent that an aspect of its conduct is religiously motivated.” (P.  47.) But there is nothing disabling about such a mix, as it’s clear that individuals have free-exercise rights when engaged in commercial or profit-making activity. (Pp 47-51.) “On the government’s understanding of religious liberty, a Jewish restaurant operating for profit could be denied the right to observe Kosher dietary restrictions. That cannot be right.” (P. 51.)

Sykes emphasizes that, unlike large publicly traded corporations, the two plaintiff companies “are both closely held and managed by the families that own them,” so that the families “are in a position to operate their businesses in a manner that conforms to their religious commitments.” (P. 54 n. 17.)

In her dissent, Judge Rovner concedes that a corporation is a person under RFRA (p. 86) but argues that it is not possible for a corporation (or, indeed, any organization, whether or not incorporated) to exercise religion. In an extended frolic-and-detour, she contends that religion is an “intensely personal experience” (p. 86), a “matter of personal conscience” (p. 90), but she never seems to grasp that individuals (like the members of the Korte and Grote families) can and do associate together in corporations and other organizations in order to live out their faith in the world.

Rovner can’t even bring herself to embrace the concept that religious organizations can exercise religion. She instead thinks that the established precedent “[p]ermitting a religious organization, incorporated or not, to invoke the Free Exercise Clause makes sense [only] as a matter of pragmatism,” as a “religious association is often as well if not better situated as the individuals who make up the association to assert the relevant religious interests.” (P. 81; see also p. 83 (“question[ing] whether [a religious organization] has free exercise rights of its own”.)

Rovner’s long footnote (pp. 96-97 n. 5) responding to Sykes’s hypothetical of a Jewish restaurant being denied the right to keep kosher is especially telling. (I confess I’m confused whether she is assuming throughout the footnote that the restaurant is an incorporated business. If she is, her “First” response elides the distinction between a corporation and its owners, the same distinction that she elsewhere maintains is so inviolate.) In Rovner’s view, an incorporated restaurant, owned and operated by a Jewish family abiding by its religious beliefs, would have no free-exercise right of its own to assert. At most, it “might have third-party standing to assert the free exercise rights of its customers.”

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