The Corner

Making Pluralism More than a Hobby

After the initial celebration of Monday’s majority decision in the Hobby Lobby religious-liberty case before the Supreme Court, the loudest cheers of joy and gratitude came when the women of the Becket Fund – the legal team that argued Hobby Lobby’s case — appeared on the Court steps. One of those women, Hannah Smith, senior counsel at the Becket Fund for Religious Liberty, talks about the case and the future of the Department of Health and Human Services Obamacare abortion-drug, contraception, sterilization mandate and religious freedom.

Q: How big of a win is the Hobby Lobby victory?

A: The Supreme Court’s decision in Burwell v. Hobby Lobby is a big win for the Green Family, for the Becket Fund for Religious Liberty (who represented Hobby Lobby in court), and for people of faith everywhere. The majority opinion authored by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas) leaves no doubt that closely held family businesses can exercise religion within the meaning of the Religious Freedom Restoration Act (RFRA), that the government’s HHS mandate creates a substantial burden on the exercise of religion here, and that the government has alternative less restrictive means of accomplishing its goals. In the decision, the Court addresses for the first time since RFRA’s passage some 20 years ago several critical questions under the statute that will positively impact those cases where the government continues to battle non-profit religious ministries in the lower courts.

Q: What’s most striking to you about the ruling?

A: The majority opinion’s detail and comprehensiveness. This opinion is a tour-de-force by Justice Alito. On every question, the opinion methodically responds to each of the government’s erroneous arguments with precision and careful attention. The opinion leaves no stone unturned.

Q: Should non-profits breathe a sigh of relief?

A: Yes, the 100-plus non-profit religious ministries — like Little Sisters of the Poor (an order of nuns caring for the elderly poor), Eternal Word Television Network (a Catholic network founded by a cloistered nun), and Wheaton College (an evangelical college) — currently litigating the HHS mandate in the lower courts should breathe a sigh of relief for three reasons.

First, the Court rejects the government’s principal “attenuation” argument. The government argued both in Hobby Lobby and in the non-profit cases that religious objections to complicity in abortion are too “attenuated.” But the Court states that the complicity concern is a “difficult and important question of religion and moral philosophy” and that the Government wrongly “[a]rrogate[es] the authority to provide a binding national answer.” Doing so, the Court continues, would amount to the Government finding that the Greens’ sincerely held religious objections are “flawed.” The Court rightly refuses to wade into this thicket.

Going forward in the non-profit cases, the government cannot so glibly claim that the “accommodation” is “just signing a form.” Indeed, the Court notes that it has already granted the Little Sisters of the Poor a temporary opt-out from the “accommodation” pending appeal in the Tenth Circuit Court of Appeals. In footnote 9, the Court characterizes that order as applicable to “eligible organizations,” which should give hope to other non-profits seeking similar relief.

Second, although the Court expressly leaves open the question of whether the government’s “accommodation” for non-profit religious ministries satisfies RFRA, lower court judges should apply much of the Court’s reasoning in Hobby Lobby in the pending non-profit cases, which will likely prove favorable for those religious ministries.

Third, the Court’s reasoning that the government could simply pay for the drugs and devices itself undermines the government’s least restrictive means argument in the non-profit cases. After Hobby Lobby, the government must explain why “[t]he most straightforward way of doing this” is not simply “for the Government to assume the cost of providing” contraception under its own mandate. As the Court notes, the government to date “has not provided any estimate[s]…[or] any statistics” regarding the costs of providing these drugs and devices. Perhaps now it will finally be forced to do so.

Within hours of the Court’s decision, the Eleventh Circuit Court of Appeals granted an injunction in the Eternal Word Television Network v. Burwell case. This will surely be the first of many such victories to come as the lower courts begin to apply Hobby Lobby’s reasoning in the non-profit cases.

Q: So is it or is it not an affirmation of the accommodation?

A: The bottom line is that the Court expressly leaves open the question of whether the government’s “accommodation” for non-profit religious ministries satisfies RFRA’s demands. But the fact that the Court (1) endorses its order in Little Sisters of the Poor as applying to “eligible organizations” (e.g., other non-profits), (2) rejects the government’s “attenuation” argument, and (3) says that the government could pay for contraception itself, should all provide solid grounds for non-profit religious ministries to challenge the “accommodation” in the lower courts.

Q: What has been so fundamentally misguided about the Obama administration’s argument from the beginning?

A: The government fundamentally misunderstands the demands of federal and constitutional law with respect to religious liberty. As Justice Kennedy wrote in his concurring opinion: “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers — burdening one while accommodating the other — when it may treat both equally by offering both of them the same accommodation.” The government has pursued this path from the beginning, seeking to divide and conquer different religious groups by offering them different levels of protection — a full exemption for churches, an incomplete “accommodation” for non-profit religious ministries that meet certain criteria, and no protection at all for for-profit religious entities.

Q: Where does this leave religious-liberty jurisprudence?

A: The Hobby Lobby opinion puts religious-liberty jurisprudence in a very good place. In fact, the Becket Fund for Religious Liberty along with Professor Douglas Laycock of UVA Law School will be back at the U.S. Supreme Court again in the fall in a non-mandate case involving another federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). In that case, Holt v. Hobbs, Arkansas prison officials have denied a Muslim prisoner’s request to grow a religiously-motivated half-inch beard. The Court’s decision in Hobby Lobby will help make the point that if a government offers an accommodation for secular reasons, it must also offer the accommodation for religious ones. In fact, the Court’s opinion in Hobby Lobby highlights the federal government’s inconsistent positions between the HHS mandate cases and its amicus brief filed on behalf of the Muslim prisoner in Holt. In footnote 41, the Court quotes the government’s brief in Holt: “the Government itself apparently believes that when it ‘provides an exception to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.’” Hobby Lobby will be helpful in securing prisoners’ religious-liberty rights under RLUIPA. 

Q: Between the Hobby Lobby ruling Monday and the buffer-zone ruling last week, is there something to consider about women and even women on the Court?


A: There has been some talk in the media about the fact that all three female justices on the Supreme Court were in dissent in Hobby Lobby. This is not surprising given that last term (OT ‘12), the three femalejJustices voted together 94-96 percent of the time according to SCOTUSblog’s statistics. The voting patterns of the three female justices are easily explained: they were all appointed by a Democratic president and have similar judicial philosophies. To say that the three female justices on the Supreme Court voted against religious liberty is not to say that all women must follow course. In fact, if you look in the lower courts, women judges have voted for religious liberty in HHS mandate cases 61 percent of the time. The leading district court opinion favoring religious liberty in an HHS mandate case was written by a woman, Judge Rosenthal in the Southern District of Texas. And two out of the four Circuit Court of Appeals opinions favoring religious liberty were written by women, Judge Sykes in the Seventh Circuit and Judge Brown in the D.C. Circuit. Where one falls with respect to religious liberty depends much less on one’s gender than on one’s judicial and political philosophy.

Q: What is your hope people might better appreciate about the Hobby Lobby case?

A: This case, at bottom, is about pluralism — something everyone claims to value. In today’s society, different people hold different views on the morality of contraception and abortion. The question is whether our government will protect everyone’s freedom to live according to those different beliefs. The HHS mandate tried to impose a one-size-fits-all morality, threatening the Green family with multi-million dollar fines for living according to their beliefs. But the Supreme Court’s decision guarantees that everyone is free: Those who favor contraception are free to buy it with their own money or with the government’s support; the Green family is free to stay out of it. When the government doesn’t try to impose a one-size-fits-all morality, everyone is better off.

Q: Based on the majority opinion Monday, what can Americans — and the world — confidently know about religious liberty in the U.S. and its protection and its future?

A: The Roberts Court has consistently stood firm in protecting religious liberty. From O Centro in 2006 to Hosanna-Tabor in 2012 to Town of Greece and Hobby Lobby in 2014, the Court has rightly protected Americans’ God-given rights to religious freedom. We at the Becket Fund are hopeful this trend will continue next term in Holt v. Hobbs and beyond.


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