Monday, June 30, 2014

Three Thoughts on Hobby Lobby, a Not Very Important Case

By Michael Dorf

Today's Hobby Lobby ruling raises all sorts of fascinating questions. Here I'll just record three thoughts.

1) The case just is not that important.  We tend to focus on Supreme Court cases one Term at a time, but some Terms have more important cases than others. Even if one regards Hobby Lobby as the most important case of this Term, this is a relatively sleepy Term.

To be sure, a ruling that publicly traded for-profit corporations are entitled to religious exceptions under RFRA would have been potentially important. Indeed, it's even possible to read the decision as having that implication. Justice Alito writes: "No known understanding of the term 'person' includes some but not all corporations." So even though the case only formally addresses closely-held corporations, it is possible to read it as implying RFRA rights for publicly traded corporations too, as Justice Ginsburg says in dissent. But even if a later case extends Hobby Lobby to publicly traded corporations, there will be little practical effect. As Justice Alito's majority opinion notes, major corporations are highly unlikely to avail themselves of exceptions because it would be so difficult to justify doing so under the business judgment rule (even if the corporate board were to want to do so). Moreover, the bad public relations would affect the bottom line and thus anger shareholders.

Meanwhile, the federal government now likely will move to extend the exemption regime that applies to religious organizations to firms like Hobby Lobby: with the government and/or the private insurers picking up the tab. The main potential of the case was always that it could be a symbolic victory for exemptions, and that this could then give momentum to the campaign against antidiscrimination law. But the Court goes out of its way to warn against that sort of generalization. Perhaps that distinction is unprincipled, but it nonetheless undermines any symbolic lift the case could have given to religiously-inspired bigots.

My one caveat here concerns the way that the Court distinguished anti-discrimination law. It said: 
"The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." What about sex discrimination, age discrimination, and most importantly, sexual orientation discrimination? My view is that anti-discrimination law is also compelling and narrowly tailored to these evils, but it's not obvious that (all members of) the Hobby Lobby majority agree. 

2) Some, but not enough, clarity on RFRA.  In my contribution to the SCOTUSblog Symposium on Hobby Lobby, I noted that the Court had paid inadequate attention to how it is that RFRA remains valid against the federal government. I explained that there is no good affirmative power argument against RFRA, and Justice Alito's opinion makes the same point. That is an advance. But I also raised the question of how it is that the Court is competent to apply the RFRA test--which is in most relevant respects the pre-Smith test--when in the Smith case it said that it was not competent to apply that test. The question is most acute for Justices Scalia and Kennedy, the two members of the Smith majority still on the Court and in the Hobby Lobby majority. The Hobby Lobby opinion doesn't answer that question. At the very end of the opinion, the Court says that Congress reached a contrary judgment in RFRA, but Justice Scalia's Smith opinion had implied that the test imposed a judicially impermissible task, as to which the Constitution should trump a statute. As I explained in my earlier essay, I think there are ways to get around this point, but the Hobby Lobby Court simply ignores the issue. (Let me add that the best way to get around the issue may be one I neglected in my original SCOTUSblog piece: As amended by RLUIPA, RFRA does not require inquiry into the "centrality" of religious belief, and Justice Scalia's judicial competence point in Smith can be read to be restricted to the centrality determination.)

3) Implications for the Little Sisters Case

A casual reading of the opinion might lead one to think that it is bad news for the plaintiffs in the Little Sisters case and the other cases in which people argue that the government's required procedure for obtaining an exemption is itself a violation of RFRA. After all, the Court rules in Hobby Lobby that the challenged rule violates RFRA because it is more restrictive than the opt-out procedure by which the insurers themselves pay for contraception (and ultimately recoup its cost because it's cheaper than paying for the health impacts of pregnancy). If that is the less restrictive alternative, then surely that alternative satisfies RFRA, and so the Little Sisters and like plaintiffs are out of luck, right?

Wrong. Justice Alito's footnotes 9 and 39, together with the following statement, make clear that he is not foreclosing the Little Sisters challenge: "We do not decide today whether an approach of this type", i.e., the opt-out combined with insurance coverage being directly supplied by the insurer, "complies with RFRA for purposes of all religious claims."

Meanwhile, elsewhere in the opinion, Justice Alito makes crystal clear that the question of whether the connection between a compelled act and its consequences is too attenuated to implicate RFRA is one as to which the religious claimant's own views are determinative (except perhaps in tax cases). Accordingly, I read Hobby Lobby as quite favorable to the Little Sisters and similar plaintiffs. And I think that explains why Justice Alito offered reasons for thinking (although did not ultimately rely on the conclusion) that RFRA was not narrowly tailored for a second reason: the government could just pay for contraception insurance directly. If that's also a less restrictive alternative, then that will greatly help the Little Sisters in their case.