Friday, July 11, 2014

Hobby Lobby Post-Mortem Part 6: Religious Objections to the Minimum Wage, Sincerity, and the Least Restrictive Means Test

-- Posted by Neil H. Buchanan

In yesterday's post, I predicted that the Hobby Lobby decision will intensify future disputes regarding the "sincerity" of plaintiffs who make claims under the Religious Freedom Restoration Act (RFRA).  After summarizing that argument briefly here, I will describe how the sincerity inquiry might proceed, focusing on one of the examples mentioned in the Hobby Lobby dissent: religious objections to the minimum wage.

Claims under a RFRA analysis must be brought by a "person."  The Hobby Lobby majority held that this requirement is met for (at least) closely held for-profit corporations, using logic that could easily extend to all corporations.  Even if the definition is not ultimately pushed that far, however, the range of plaintiffs now includes some large limited-liability corporations that are engaged in profit-making activities.  To win a RFRA challenge, such a "person" must hold a sincere religious belief that it is being "substantially burdened" by a law.   Only if that law is designed to achieve a "compelling governmental interest" by the "least restrictive means" possible will such a religiously burdensome law be allowed to stand.

I argued yesterday that, with the Court now having essentially erased the requirement that burdens be "substantial," this will put greater pressure on the other elements of the claim.  In addition, now that the pool of possible plaintiffs includes for-profit corporations, and because those companies can often increase their profits by becoming exempt from various laws, they will be tempted (indeed, they might even feel that they have a fiduciary duty) to claim that those laws violate the companies' sincerely held religious beliefs.  And if that happens, then the courts will find themselves doing something that they have understandably avoided doing: judging whether people really believe what they claim to believe regarding religious matters.

As I noted yesterday, it should be possible under RFRA (actually, it would seem to be required by the text of the law) for a court first to inquire into whether a religious burden is legally "substantial," but the Hobby Lobby majority seems to have erased that requirement.  The majority first describes the burden imposed on Hobby Lobby as being substantial because it is involves a choice between either violating their religious beliefs or paying a large fine.  This raises a question, debated on the comments board for my post yesterday, regarding whether the substantiality requirement applies to the seriousness of the religious belief being burdened, or the seriousness of the consequences of not obeying the law.

The majority clarifies their analysis (at 36-37 of the slip op.) by saying that Hobby Lobby's relevant religious "belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another."  Removing all doubt about their meaning, the majority then writes that "it is not for us to say that their religious beliefs are mistaken or insubstantial.  Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction,' id., at 716, and there is no dispute that it does" (emphasis added).

In plain words, therefore, the majority says that the substantiality requirement applies to the nature of religious beliefs, and that the nature of religious beliefs cannot be second-guessed by the courts.  If a "person" says that the law implicates a question that is "difficult and important" to them, then the inquiry is apparently over.  Religious burdens are perforce substantial, because each religion has its own set of difficult and important matters.  What the majority did not rule out, however, is inquiries into whether such convictions are "honest."

To read Justice Kennedy's opinion, none of this should worry anyone.  Sure, he says, we might be expanding the apparent scope of RFRA claims in various ways, but that is not a problem, because the "least restrictive means" prong is still there.  Since it was (in Kennedy's view) quite easy for the ACA to accommodate the religious convictions of Hobby Lobby's owners, by extending the reporting option that is now being challenged by Wheaton College and the Little Sisters of the Poor, who cares whether the other prongs have been broadened?  For example, worrywarts who fret that religiously-based racist beliefs could undermine anti-discrimination laws can calm down, because those laws are the least restrictive means to accomplish the compelling governmental interest in guaranteeing unbiased employment decisions.

Setting aside the dissent's accurate criticism that the majority decision in Hobby Lobby only grudgingly accepted the "compelling governmental interest" prong of the case, the question is where the battlegrounds will be in future cases.  Which brings us to a possible religious challenge to the minimum wage.  Although it might seem, at first blush, silly to imagine that there could be a religious objection to the minimum wage, in fact such a challenge was already adjudicated in the 1980's.  (The dissent cites that case, as well as a case challenging equal-pay-for-equal-work gender equity laws on religious freedom grounds, from 1990.)  Such a challenge would almost certainly put the spotlight on the sincerity inquiry.

There are a number of different ways in which such a claim could be articulated.  One could, for example, imagine a company saying that its owners' religious precepts include a sincere interpretation of the Bible that rules out paying people anything other than what the market will bear.  Sound far-fetched?  In Bob Jones University, a famous tax law case from the early 1980's, the university in question had interpreted part of the Old Testament to mean that interracial dating is a sin, and that arguing against a ban on interracial dating is also a sin, both punishable by expulsion from the university.  The Supreme Court there was eager to avoid inquiries into the sincerity or accuracy of such a scriptural interpretation, for obvious reasons.

Would it matter that a company's owners had never articulated such a religious conviction prior to the issuance of the Hobby Lobby case?  Would it matter that a company's owners had converted to an anti-minimum wage religion the day before they announced their refusal to pay the minimum wage?  Or that they had invented a new religion on their own?  Until now, courts would have been eager to say that it is inappropriate to second-guess whether recently acquired religiosity was sincere, because even death-row conversions are accorded respect.  Yet it would be all but impossible for courts now to avoid wading into such inquiries, precisely because the circumstances would raise such a strong whiff of opportunism.

What about Justice Kennedy's reassurances?  Could a court uphold the minimum wage without inquiring into sincerity, simply by saying that the government's interest in rewarding work with minimally adequate compensation can be least restrictively achieved by enacting and enforcing minimum wage laws?  Again, let us set aside the likelihood that the compelling governmental interest itself could be challenged here.  Even so, there is an arguably less restrictive means: the Earned Income Tax Credit (EITC) is already available as a wage supplement for the working poor, and it could be increased to make up for the loss of wages to workers whose employers have a presumptively-sincere religious objection to the minimum wage.

Indeed, the labor economics literature includes some very interesting work (in particular by Theresa Ghilarducci) regarding the complementarity and substitutability of the minimum wage and the EITC.  The major point of that analysis is that using both policies allows us to achieve anti-poverty outcomes without pushing either policy lever too far, thus minimizing potential negative side effects of each policy choice.  But that very analysis can, under Hobby Lobby, now be turned back on itself.  If the compelling interest is making work pay for the poor, then the least restrictive means analysis must ignore policy concerns about whether other, non-religious harms might be caused by over-relying on the EITC and under-relying on the minimum wage.  If there is a sincere religious objection to the minimum wage, and there is an easy substitute -- indeed, a substitute that most minimum wage workers already receive -- then the minimum wage must go.

Which then brings us back to the sincerity problem.  The gold rush mentality of for-profit firms suddenly seeing a way out of paying the minimum wage would be awesome to behold.  Having been reminded by the Hobby Lobby majority that they cannot inquire into whether religious beliefs are "mistaken" or "substantial," courts will have no choice but to inquire into whether such beliefs are sincere.  And that could become very ugly, for believers and nonbelievers alike.


David Ricardo said...

Nothing better illustrates the absurdity noted by Mr. Buchanan than this

"I was thrown out of college for cheating on the metaphysics exam; I looked into the soul of the boy sitting next to me."

Woody Allen

and the fact that Scalia, Alito and company believe this to be a true story.

Scott said...

Neil, I think you're reading entirely too much into Alito's admittedly poor choice of words with respect to the substantiality analysis. The second paragraph of section IV.C of the majority opinion (a couple of paragraphs before the "insubstantiality" portion you quote) reads: "This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs)" (emphasis in original), which clearly indicates that the "substantial burden" refers to the barrier imposed by the statute for *adhering to* that belief, which in this case is the ACA penalty. Likewise, the end of that section, as quoted yesterday, reads "Because the contraceptive mandate forces them to pay an enormous sum of money-as much as $475 million per year in the case of Hobby Lobby-if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs." Weighed against these very explicit statements, the idea that the majority is saying that "substantiality" refers to the content of the belief, and therefore cannot be validly questioned by the Court, just doesn't hold up.

Stuart McPhail said...

There's a further wrinkle with the sincerity analysis - the majority indicated that it wouldn't be too difficult to determine the sincere beliefs of "the corporation." But the Court never actually makes that finding as to Hobby Lobby (or its co-plaintiff companies). Rather, it finds that "the *Hahns* and *Greens* have a sincere religious belief that life begins at conception." (emphasis added)

The majority seems to vacillate between finding that ACA harms the owners' religious beliefs and finding that ACA harms the companies religious beliefs. Over at Volokh, commentators have been arguing that a harm to a company's religious belief necessarily harms the owners' belief, because corporations are just ways for owners to conduct business. That analysis would mean the court would have to look at the various stock holders, etc. to determine whether they are sincere. But it doesn't tell you what to do when those sincere religious beliefs contradict (the majority states that this would just be a problem of corporate law, but does not say what a court is to do if the two groups argue that their interpretation of a religious belief is the right one, and that the corporation is bound to follow their belief - when such problems come up in churches, courts just refuse to get involved in resolving that dispute).

Neil H. Buchanan said...

My thanks to David Ricard and Stuart McPhail for their comments. This is the kind of thing (along with yesterday's comments) that makes Dorf on Law such a joy.

Re Scott's nicely articulated comment, although I continue to think that the language that I quoted in today's post disproves his argument, let me be clear as to why that does not matter as much as it might seem. The extra oomph from eliminating the substantiality requirement is that the belief-based inquiry will be relocated to the sincerity analysis. Even if substantiality were a matter of consequences, that would merely mean that the substantiality analysis was never about beliefs in the first place. Either way, the result is that the substantial burden prong is not where challenges to religious beliefs can be lodged. Under Scott's reading, Hobby Lobby doesn't increase the pressure on the other prongs, whereas under my reading, it does. I can live with it either way, even as I continue to believe that it ought to be interpreted in the way that I've articulated.

Joe said...

can of worms, huh?

t jones said...

"Although it might seem, at first blush, silly to imagine that there could be a religious objection to the minimum wage."

At first blush, it seemed silly that a for profit corporation could be a person with standing to bring a free exercise claim. So long as the current ideological majority controls the Court, we need to find a new vocabulary for discussing their decisions. (Which it now occurs to me Prof. Dorf has begun, with his incorporation of "truthiness" in his recent post.)

Shag from Brookline said...

Since the Colbert Report has been on hiatus the past two weeks, perhaps we might expect Stephen Colbert's proper treatment of Mike's attempts at "truthiness," which hopefully will be more "truthy" than Mike's on the 5-4 Hobby Lobby decision.

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