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.


egarber said...

And correct me if I'm wrong, but this wasn't a constitutional precedent (free exercise) in any way, right? So it's therefore less important than it might otherwise be. Laws can be changed.

matt30 said...

Strange title. I suppose its "not very important" if you're one of the 45% of people that don't work for a large or publicly owned corporation. For the majority of people, it's a pretty big deal that a sole proprietorship, small partnership, or closely held corporation now has license to bypass government mandated protections for employees . . . because Jesus. And it just so happens that faithfulness to God's commands also happens to increase profit margins (all things being equal). Terrible decision.

Is facilitation of a outcome (an abortion in this case), which is contingent on the independent action of a third person (actually going to the doctor and having the procedure performed), now a substantial infringement of the free exercise clause? Give me a break. I wonder how many other idiotic "facilitation" arguments are out there waiting for the next credulous federal court judge to embrace.

This decision ruined my entire day.

matt30 said...

Continuing on my rant, how is requiring a minor reduction in the market price for an abortion, which might induce a third-party to do something the first-party sees as morally objectionable, a substantial burden on free exercise?

Is there even a test for when something is a substantial burden?

Michael C. Dorf said...

Eric is right that Hobby Lobby interpreted a statute, not the Constitution, and thus does not involve the "free exercise clause", as matt30 assumes. matt30's opening example is somewhat misguided too. The Court invites the Administration to ensure that women working for any company that was heretofore covered but is now entitled to an opt-out will continue to receive no-copay contraception insurance coverage--as I say in the post.

As for matt30's second comment, the majority says it's essentially subjective: so long as the claimant is sincere, then an objection is valid. The substantial burden analysis comes in here w/r/t the size of the economic burden. The Court doesn't set a floor but it says that millions of dollars counts as a substantial burden.

Joe said...

The opinion has 1A implications (Kennedy separately spoke of Free Exercise interests, citing Cantwell, the main opinion spoke of "free exercise" principles including for profits corporations).

I have severe doubts that (which even two dissenters separately noted they were not deciding) this opinion is only about RFRA long term.

I take it that the Administration has the power to extend the workaround used for non-profits. The OP speaks of this being "likely." Telling. So, it's an act of discretion, is it?

What about if something else was involved? Or another administration? Something not deemed "compelling" enough to make a special exception for? I take this might raise Establishment problems but maybe the alternative would be just to deny it to everyone.

The ruling very well only go so far. But, the principles isn't just going to be applied to contraceptives. Every single health benefit possibly can raise for someone a religious concern. That's just for this legislation. The principle applies across the board, to every single benefit.

The opinion says we shouldn't assume ... it 'may' be different for various things. That's stupid. The whole point here is to apply not a ticket for one day or case only. It is to set an overall principle to cover a range of things.

For some range of for profits, a range of question marks will arise. Given Alito opinion couldn't even firmly say (unlike Kennedy) that contraceptive mandate advanced a substantial interest, who knows about other things? As to the "business judgment," if the for profit is carrying out a religious purpose, which is after all the whole concern here, some controversy would seem reasonable.

The business isn't just there for profit, but to do so carrying out a certain religious function. As to discrimination, a range of people, including homosexuals in all the circuits except maybe two (2A, 9A) and surely others are not protected by heightened scrutiny. Religion would trump.

The case is important, if not as bad as some of the rhetoric will imply. Still, coming from this blog, that headline rankles.

Donna Brewer said...

Professor Dorf ends by noting that there are reasons to conclude that the Hobby Lobby majority will rule favorably for the plaintiffs in the Little Sisters case. I agree, but I do so without reading any precedent, without reading any briefs, or without knowing anything about the actual burden imposed on the plaintiffs by making the disclosure required by law. I agree with Professor Dorf based solely on the contradictory, specious, and yea even unprincipled rulings issued by the conservative wing of the Roberts Court. And that is no way to run a respected judicial syste

Justin said...

Re: Little Sisters

Under the current RFRA test, Alito's point makes no sense whatsoever. One of the key problems with RFRA (among several) is that it is *not* a balancing test. First, you see if there's a valid objection, and then, without balancing, you apply whether the government has passed the compelling interest/least restrictive alternative test. Thus, something can't be sufficient to satisfy Hobby Lobby's interest, that won't satisfy the Little Sisters' interest, if their belief is the same.

The only way to differentiate the two is that LSOP's position is far more extreme, in that participating in a system that ultimately ends up with someone getting birth control goes against their rights. But I really see that only as a difference in intensity, rather a different distinction; after all, we don't allow the plaintiff in RFRA cases to fashion the remedy; there's nothing that would allow Hobby Lobby to say to the Supreme Court, "we aren't satisfied, go further."

- J

matt30 said...

The idea that the government could provide contraceptive coverage despite this ruling, while at the same time removing protections in other places, is about as comforting as a steel coffin. If the mere act of lowering the market rate for abortion is a substantial burden to corporate religious liberty, I don't see why that doesn't touch every area of regulation where political beliefs are informed by religious principles--corporate or otherwise.

I still don't understand how we transmute a vague religious principle that "life begins at conception" (as the court puts it) into a concrete directive not to lower the market price for an abortion procedure. Is the court saying that paying for employee contraceptive coverage makes it harder to believe that life begins at conception? What if the reduction in price is so minimal that no person who is "pro-life" gets an abortion? Is subsidizing the price for nonbelievers a substantial burden? What is the level of fit here? I can understand fines for sending kids to public school or being forced to make tanks to support a war effort as a pacifist (Thomas v. RBIESD), but this seems tangential as all hell. I may have a number of beliefs that are also tangentially related to the things I believe religiously. For example, I may believe as a religious principle that humans were never built to eat pork products. And based on that belief, as well as others such as the appropriate treatment of animals, I may not support buy meat products from places I know handel pigs. But that doesn't give me the right not to participate in any government program or system of regulation that might lower the price of pork products. At least it didn't until today.

egarber said...

I saw this in the wapo:

"(Hobby Lobby) will continue to provide 16 of the 20 FDA-approved contraceptives under the mandate"

So the immediate practical effect isn't too drastic, it seems to me. The real impact will be future interpretation of the precedent - perhaps most specifially, the way future courts define "compelling interest" to justify other coverage requirements.

It also seems to me that RFRA itself is constitutionally flawed, because the government by definition must entangle itself with religion in determining what is and isn't a true religious belief. Very messy stuff.

Unknown said...

Re Scalia and Smith versus RFRA: I take Smith as saying the constitution gives the courts no automatic authority to apply such a test while RFRA, being a relinquishment of authority by the congress, does permit the courts to apply such a test, if it does not go so far as to indirectly instruct the courts to do so by ordering the rest of the federal government to do so and leaving decisions about whether such portions of the government has done so up to the courts to determine.

Note: Whether I like the outcome or not, I am of the opinion the court interpreted the law correctly.

Matt said...

Professor Dorf, can you please explain to us the Court's ruling with respect to the "least restrictive means" test? It appears that the Court primarily relies on the fact that HHS has created this secondary accommodation (in the context of non-profit religious organizations) to demonstrate that HHS could have a less restrictive way to effect the compelling state interest.

Doesn't this argument claim too much, though? Couldn't this argument be made about other coverage requirements, such as immunizations? That is, it doesn't seem difficult to show substantial burden, and it seems difficult to show a lack of a compelling state interest, but the logic that secondary accommodation is available is always going to apply to claims like these.

Of course, at some point, the argument stops working, since it burdens insurers with so much additional costs, but there really isn't any judicially manageable principle to limit the application of this argument.

Please correct me if I'm missing something!

Best regards.

Matt said...

Put differently, it seems like the gist of the Court's opinion is that HHS provided secondary accommodation to non-profit religious organizations, so therefore there is clearly another less restrictive way to provide contraceptive coverage. But if that's true, isn't it also always true with respect to almost any type of medical coverage? If secondary accommodation is enough here to show that there was a less restrictive way to provide contraceptive coverage, why isn't it enough with respect to other coverage claims, like immunization?

Of course, at some point, these costs are going to be overwhelming to insurers -- but there is no way to determine that point, at least from a judge's perspective! Is a $10 million dollar burden on insurers too much? $20 million? These are quintessentially legislative decisions, ones which courts are incapable of making.

Michael C. Dorf said...

Matt: Alito's point seems to be that it would actually be costless to extend the backup plan to the for-profits, which won't be true with respect to circumstances in which there isn't already a backup, but that then raises the question of whether the Administration is effectively being punished for pro-actively accommodating the indviduals and non-profits.

I read Kennedy's concurrence to constrain the application of the narrow tailoring analysis to cases, like this, where there is a backup program already in place.

Matt said...

Thanks for the response! To be sure, am I missing any arguments about the "least restrictive means" prong of the test? I'm re-reading the opinion now, and it seems like the Court really just focuses on the backup plan (secondary accommodation) as its primary explanation for why a less restrictive alternative exists.

If that's the case, I'm still not really satisfied that it's a workable approach. Could the petitioners demonstrate a less restrictive approach if they were able to show that the government would only spend $10 million to exempt them from ACA coverage requirements? $1 million?

Surely though, there is no such thing as a costless exemption. There will be administrative costs (and opportunity costs) in creating new regulation. And how is it possibly costless for insurers, who are likely going to be forced to foot the bill?

Thanks again.

Matt said...

For what it's worth, props to you for being one of the few commentators out there who are discussing the case in a measured (see: non-invective laced) manner. I've spent a lot of time explaining to my friends about the secondary accommodation regulations.

Matt said...

I suppose that Alito suggests that the Government could simply pay for the cost of providing the contraceptives itself. Op. at 41. As a professor remarked on the conlaw listserve, though: "I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility."

Joe said...

To be fair, multiple bloggers who to me seem to be generally supportive of the contraceptive mandate have used "measured tones" including Andrew Koppelman and Andrew Sullivan. Marty Lederman has done so too.

I respect the use of measured tones but would use them to say this was an important case, especially given its implications and the repeated use of such cases in Roberts 'long game' of changing the law.

DHMC said...

I think the developments in the day and a half since Hobby Lobby was announced have shown that it will indeed be a major case. The court left in place rulings in lower courts objecting to all 20 methods of birth control, and lower courts have started issuing stays based on Hobby Lobby, reading it based on its underlying principles, not just the narrow facts of the case. (Much as has been done with gay marriage post-Windsor.) Commentor Joe noted Andrew Sullivan's muted tones -- Sullivan today acknowledged that he may have been mistaken. I thik Jeff Toobin's and Rick Hasen's theses of the Court's incremental course to radical change are the accurate analyses, and that Hobby Lobby is the first step in a very troubling direction.

Michael C. Dorf said...

I am also beginning to think that I underestimated where this case will go. I'll have some further thoughts on Hobby Lobby next week.

DHMC said...

I look forward (as always!) to reading them.

Justin said...

"Matt: Alito's point seems to be that it would actually be costless to extend the backup plan to the for-profits, which won't be true with respect to circumstances in which there isn't already a backup, but that then raises the question of whether the Administration is effectively being punished for pro-actively accommodating the indviduals and non-profits."

Of course they're being punished for being pro-active. If Justice Scalia is right in Smith that narrowly tailored means precisely that, then DOJ has already shown that they could have narrowly tailored the statute in a way that permitted Hobby Lobby to opt out. The decision that Congress/DHHS made in exempting nonprofits but not for-profit corporations is simply an impermissible one under RFRA. RFRA doesn't discriminate in regards to whose religious exceptions are more sincere.

Once the majority decided that:

a) Closely-held for-profit corporations are covered under RFRA;
b) That they wouldn't address whether Hobby Lobby's concern is too attenuated to be vindicated;
c) that they weren't going to turn the RFRA test into a balancing test;
d) That they weren't going to apply anything less than a classic narrowly-tailored scrutiny to the government interest (even though, in practice, they have done so in the past)
the outcome was pre-ordained.

I think this is why RFRA is either unconstitutional (under both an Establishment Clause understanding and as an unconstitutional delegation of legislative authority without a sufficiently intelligible principle), or that the RFRA test must be altered to balance between the relationship of the interference of free exercise to the sincerely-held beliefs of the plaintiff and the government interest in exercising its authority.

Matt said...
This comment has been removed by the author.
Matt said...

Justin: I respect your position, but I think that the non-delegation doctrine argument is a nonstarter, and the Establishment Clause argument is unfortunately foreclosed by Cutter v. Wilkinson. Stevens wasn't really able to find much support for this view in his concurrence in City of Boerne.

Justin said...

I wasn't actually expecting the Supreme Court to say "because Congress has essentially told us to do whatever we want, the law is unconstitutional." I just think it may be the correct answer; or, better yet, grounds for abandoning the pretense of a non-balanced strict scrutiny test which is only haphazardly applied.

Justin said...
This comment has been removed by the author.
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