Thursday, July 10, 2014

Hobby Lobby Post-Mortem Part 5: The Burden on Religion From the Majority's Ruling in Hobby Lobby

-- Posted by Neil H. Buchanan

Professor Dorf's string of posts this week (here, here, and here) about the Hobby Lobby decision examined some of the most important issues and implications of this term's most prominent Supreme Court case.  The posts on Monday and Tuesday drew an unusually high number of readers to our comment board, demonstrating the intense interest in the decision.  Here, I want to explore a further implication of Tuesday's post, in which Professor Dorf confronted what I originally thought was an extremely strong argument against the Hobby Lobby majority, which he called the "truthiness argument."  After explaining the argument and Professor Dorf's counter-argument, I will describe below why I think the Hobby Lobby majority's opinion is actually going to be bad for religion in America.

The plaintiffs in Hobby Lobby asserted that their fundamentalist Christian religious beliefs prevent them from being complicit in providing abortions.  They then argued that the Affordable Care Act requires companies like theirs to provide health care coverage to employees that enables some employees to obtain abortions with no co-pay.  The "abortions" that the plaintiffs describe, however, are not recognized by medical science as abortions at all.  In particular, while the plaintiffs think that two forms of contraception -- IUD's and so-called morning-after pills -- can cause the deaths of living human beings, the accepted medical reality is that those contraceptive methods work before a pregnancy has begun.  Thus, the science says that these are not abortions, but the plaintiffs feel that that is not true.  Opponents of the plaintiffs' argument thus invoked Stephen Colbert's famous neologism of "truthiness," which can be defined as "the quality of seeming or being felt to be true, even if not necessarily true."

In his Tuesday post, Professor Dorf does not question the scientific consensus, but rather asks what is so unusual about people making religious claims in court that are not backed up by science.  Religion is all about accepting matters of faith, so it should hardly surprise us when a person asserts that their religion requires them to believe things that those outside the faith do not believe, and which cannot be true as a matter of secular knowledge.  (Perhaps his best example of this was sacramental wine being thought by believers to be the blood of Christ.)  The point, therefore, is that a claim cannot simply be waived off for being based on truthiness rather than truth, because the whole inquiry under these cases is about what people believe.

Like Professor Dorf (and many of his readers), I initially resisted this logic rather strongly.  Ultimately, however, he is right.  In the course of a spirited (if occasionally exasperating) exchange of comments, he boiled his argument down to this: "I am making exactly one point: that a religious claim doesn't lose simply because it is predicated on a false factual belief."  The interesting questions arise from what he said next in that comment: "I am not saying anything else. The plaintiff still must show a substantial burden from a law or policy. Etc."  In other words, it is still possible to consider the scientific validity of beliefs at other stages of litigation, but it is not acceptable to say that the beliefs themselves cannot be considered simply because they include factual assertions that can be disproved.

Where does one go from there?  To succeed under the Religious Freedom Restoration Act (RFRA), plaintiffs must show that a law creates a "substantial burden" on their religious exercise.  If they do so, the law will still be allowed to stand if it furthers a "compelling governmental interest" by the "least restrictive means" possible.  As Tuesday's post points out, the plaintiffs do not automatically lose merely because their assertion of religious belief is based on factually false beliefs, but this merely relocates the battleground.  It does so, moreover, in a way that religious believers are likely to find rather uncomfortable.

Justice Ginsburg's dissent points out that the majority opinion blithely reads the word "substantial" out of RFRA.  That is, even though the legislative history shows that the word "burden" was initially unmodified in earlier drafts of the law, the adjective "substantial" was added in order to make sure that laws would not be negated under RFRA on the basis of insubstantial concerns.  Although the majority simply ignores this distinction in Hobby Lobby, it is certainly possible to imagine future litigation over this question.  With respect to "truthy" arguments, therefore, we could imagine extremely uncomfortable judicial inquiries into just how outlandish a religious belief might be, with conclusions like this: "We do not doubt that your religious exercise is burdened by having to pay for vaccines that -- according to your religious beliefs -- destroy the ultimate reproductive capacity of young girls, but you're wrong about that.  And that means that your religious concerns are not burdened in a substantial way, because you really are wrong.  Your religious concerns are insubstantial.  Case dismissed."

Let us imagine, however, that future courts take the majority's hint and read the substantiality requirement out of RFRA.  Or, assume that religious claimants are willing to risk losing a substantiality argument, because they will also win some.  As the dissent points out, religious believers and nonbelievers alike should be troubled by the logical implication of allowing people to rely on truthy false claims, because the most likely point of contention will become whether the substantially burdened religious beliefs are "sincerely held."

The discussion about Professor Dorf's Tuesday post contained hints to how Hobby Lobby will turn religious sincerity into a major battleground.  Consider two plaintiffs.  One says, "I oppose abortion, which has a medical meaning to which I have no objection.  And I oppose IUD's, because they cause abortions."  The other says, "I believe, based on my religion, that what IUD's do is abortion, which I find sinful."  Because RFRA requires us to honor sincerely held religious beliefs, we are apparently allowed to say to the first person, "Your objection is not based on a sincerely held religious belief, so you lose," whereas we are required to say to the second person, "Your objection, although factually wrong, can go forward."  (And certainly, if a third person says, "I oppose contraception in general as matter of religious belief," then there is no truthiness objection at all.)

Anyone who wants to win his case, therefore, knows what the magic words are.  Some people, of course, will be unwilling to testify falsely under oath about the content of their religious beliefs.  Others, however, will be able to convince themselves that they are doing the Lord's work by characterizing their beliefs in a way that accomplishes their ultimate goal.  Thus, in order to win, a plaintiff will know what to say.  But of course, the government will know that people will have this incentive to misrepresent (or at least fudge) their sincere religious beliefs, and it will thus become ever more important to challenge people's sincerity regarding their assertions of religious belief.

This, I think, is what Justice Ginsburg had in mind at the end of her dissent, when she wrote: "There is an overriding interest, I believe, in keeping the courts 'out of the business of evaluating the relative merits of differing religious claims,' Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the Establishment Clause was designed to preclude.'  The Court, I fear, has ventured into a minefield ...”

The Hobby Lobby majority has essentially invited a larger range of plaintiffs (corporate "persons") to make religious claims under RFRA.  For a variety of obvious reasons, this new group of plaintiffs is especially likely to make insincere religious claims in order to avoid a variety of laws.  Religious people should not look fondly upon the prospect that secular courts will be called upon to pass judgment upon religious sincerity, especially when inquiring into sincerity will surely result in courts' assessing the factual validity of religious claims.


Scott said...

Neil, I thought that the "substantial burden" at issue was the burden incurred by the objecting party in the course of *exercising* their religious freedom. This certainly seemed true in the HL decision: the burden on the company was the fines levied against it for noncompliance.

Alex said...

Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with [*6] the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price-as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would."

I think Scott is right.

Alex said...

Although I guess it's both. The consequence of facilitating abortions and losing piety is said to be substantial too. I suppose both measures need to be high. If it's only $50 to avoid losing piety, I don't think that meets the threshold.

Unknown said...

I think Your premise is flawed. The court definitely looked to the burden for adherence to religious belief, in this case: almost half a billion dollars per year in fines/taxes. The court even went out of its way to say, "If these consequences do not amount to a substantial burden, it is hard to see what would." Perhaps a correction is in order?

Stuart McPhail said...

The burden analysis struck me as strange as well: RFRA asks whether the law (here, ACA) places a substantial burden on the exercise - so the question should seem to be whether requiring someone to pay money to an insurance company that may be used to provide a contraceptive is a substantial burden to one's exercise of a religious belief that contraceptives are immoral (to simplify the truthiness issue addressed in Prof. Buchanan and Prof. Dorf's post). But the Court never addresses that - instead, it looks to the fines imposed and says incurring such a fine would be a substantial burden.

But, one could imagine a law that places an insubstantial burden but is backed by severe penalties. Perhaps a law that says that churches (with all other buildings) cannot exceed a height limit. That might be a small burden if someone thought having a really tall steeple was important, but imagine it wouldn't be a substantial burden. But would that analysis change if the law here imposed a massive fine for the owner of any building who exceeded the height limit? I don't think such a fine would convert an insubstantial burden into a substantial one.

The opposite, though, may not be true. Perhaps a law that might impose a substantial burden would actually pose little or no burden if it was backed by only light or nonexistent penalties. If, say, there was no fine at all for a corporation to offer insurance that did not provide contraceptives. Then, even if the contraceptive mandate was a burden, the corporation could avoid the burden by just not complying. On the other hand, there may be a presumption that one must follow the law, and so courts would not look at whether one could skirt the law with impunity. But given the analysis in Hobby Lobby, it might not be out of bounds for a court to do so.

Would need to look at more RFRA/Free exercise claim cases to see if courts consistently look to the punishment imposed for failing to follow a law, or look at the what the law requires alone. From the lack of discussion of the issue in the court opinion, my guess is that courts really haven't considered the difference.

At best, the Court cites a case where a pacifist objecting to constructing tanks, was fired, and then could not get unemployment benefits. From the description in Hobby Lobby, it seems like the Court looked at the denial of unemployment to find the burden. But the pacifist did not claim a religious right to unemployment - rather, the denial of unemployment was the sanction he faced for failing to follow an order to build tanks. (This may be further complicated if that order came from a private employer - so there would be no RFRA/FE claim that the order violated the pacifists rights, only that the unemployment law could have). But one could also imagine that forcing a pacifist to build tanks would substantially burden the pacifist's exercise.

Thomas said...

"For a variety of obvious reasons, this new group of plaintiffs is especially likely to make insincere religoius claims in order to avoid a variety of laws."

What are some of these obvious reasons?

Joe said...

To answer the last question, if a for profit corporation can avoid burdensome legal requirements by making insincere religious claims (if ones hard to disprove), they very well might be tempted to do so.

Such companies from time to time already try to play the rules as far as they can, at times stretching things past reasonableness. The average person does that too, but when there is a large profit motive and the corporate form provides cover and less direct personal involve, more so.

David Ricardo said...


In addition to what Joe has said, the other obvious reason why a for profit company might make an insincere claim is for political reasons. That appears to be the case with Eden Foods which has brought a case and asked for an injunction against the mandate. The following is from an LA Times story.

“The most interesting case, however, was brought by Eden Foods, a Michigan "natural foods" firm. Its Catholic owner, Michael Potter, claimed in his lawsuit that "participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients" offends his "deeply held religious beliefs."

The appeals court that rejected his motion for an injunction against the mandate was skeptical. Potter's real position, it suggested, resembled more "a laissez-faire, anti-government screed." The evidence came from an interview Potter gave last year to Irin Carmon of Salon, in which he stated:

"I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story."

This hint that Potter had merely swaddled an anti-government rant within a "religious" blanket illustrates the main problem with Justice Samuel Alito's majority opinion in Hobby Lobby: it takes claims of religious scruples for granted.”

Note the last sentence and its relevancy to the discussions by Mr. Dorf and Mr. Buchanan. There should be no doubt in anyone’s mind about the political motivations of many of these cases, and their position that if they have to hijack RFRA so be it.

Thomas said...

David --

The Michael Potter example (even as characterized) does not support the idea that corporations are "especially" likely to make insincere religious claims. If you think it does, let me know how.

It is just as easy to imagine an individual (perhaps Mr. Potter himself, in a different capacity) making an insincere religious argument to avoid complying with a law he actually opposes as a matter of political philosophy.

There is no question the HL decision provides the Mr. Potters of the world with the opportunity to bring such claims in new contexts. But, the claim I'm interested in is that corporations are "especially" likely to bring insincere claims.

This seems far from obvious to me. Is there some reason a Michael Potter would be more likely to bring an insincere claim in his capacity as business owner than in his capacity as an individual? Seems doubtful to me.

The more interesting question is whether there is something about the nature of a corporation that would lead its owner[s] to make insincere religious arguments they would not consider making in their individual capacity.

Joe suggested the profit motive of a corporation plays this role. But, I am having difficulty distinguishing (in this context) the profit motive of a corporation from the mere self-interest of an individual.

You could even make out a plausible argument for why corproations would be less likely to make insincere religious claims. A corporation taking an unpopular religious position has the potential to create all kinds of bad publicity and alienate the general public, potentially coming back to impact the bottom line in a way most individuals don't need to worry about.

The claim that corporations are "especially" likely to make insincere religious claims is the core premise of Neil's post, but he does not argue for it... apparently believing it to be obvious. It is still not obvious to me.

David Ricardo said...


I think what we are talking about here are particular corporations. The large, diversely held corporations are not likely to make insincere claims, or any claims at all against the mandate of the ACA with respect to contraception and your point with respect to them is valid. But what we have with people like Mr. Potter is the blending of their person and their closely held corporation with political views, and that is the ‘corporation likely to make insincere religious claims”. Mr. Buchanan is not referring to the Fortune 500 here.

And as can be seen from the Salon interview with Mr. Potter, people like him view their corporation as themselves, they make no distinction between their person and their corporation. So to them there is no distinction between an individual and a corporation with respect to this issue. Their corporation is them.

And we also know that many of the closely held business owners are highly political and many are opposed to the Obama Administration with a wrath that is difficult to imagine unless one sees it up close and personal. And now the Court has handed these anti-Obama business owners a great club with which to attack the Obama administration. So they will, by thousands claim or support the claim of religious persecution when none is present, they will claim a violation of their beliefs when in fact those beliefs are only a matter of convenience. They will do anything, say anything, fund anything to attack ACA. And they have to do this in their capacity as a corporation because that is the only way they can attack the mandate, they cannot do it in an individual capacity.

Again quoting from the LA Times article

“Tuesday's orders are just the beginning: The Becket Fund, the religious law firm that represented Hobby Lobby in its legal case, lists 49 pending federal cases in which for-profit companies have brought purportedly religious objections to the ACA. An additional 51 cases involve nonprofit organizations. The floodgates aren't about to open--they're already open. “

How many of those 49 case (so far) have sincere religious objectives and how many are using the issue to make a political attack? How many thousands of business owners are supporting those 49 cases? We don’t know, but current events suggests a whole lot of closely held for profit companies just found religion. Mr. Potter is almost certainly not the exception but the rule.

Finally note the hypocrisy. These corporate owners want all of the benefits of the law that divorces the corporation from themselves, in particular the limited liability. They want the corporate to stand as an entity independent of them when that is to their benefit, and to claim they are one with the corporation when it is convenient for them to do so. Does hypocrisy breed insincerity, or is it the other way around?

Thomas said...

David --

As I see it, this weakens the argument. You seem to admit these closely held corporations are only as likely to assert insincere claims as the individuals who closely hold them. Or at least that the corporations's decisions to stake out such claims would be a result of the views of the individuals who control them.

Are you saying there is something about the corporate form that makes those individuals more likely to stake out such claims to challenge laws that affect their business than those that affect them in their personal lives?

The claim may just be that such individuals now have new opportunities for staking out such claims. But that is less interesting than what I read Neil to be arguing... i.e. that there is something about the corporate form that makes the people who own them significantly more likely to assert insincere religious claims than individuals.

I don't think this is true, although I need to think about it more.

David Ricardo said...


I think you are trying to read a broader context into what is, at least so far, a narrow context. The decision in Hobby Lobby is with respect to closely held for profit corporations that are, or were, subject to the contraception mandate in ACA. While I cannot speak for Mr. Buchanan, who speaks very eloquently for himself, I think all that he was saying is that as a result of this ruling these closely held corporations which by definition are controlled by their owners will advance insincerely held religious views in order to attack ACA.

The issue is not the corporate form, the issue is that business, which in the Hobby Lobby case has taken the corporate-for-profit form is the relevant party. Individuals are not impacted by the contraception mandate. If a person controls a closely held business they need to bring the case in the name of the business, not in their personal capacity.

One position taken here in the comments is that the motivation for feigning deeply held religious beliefs in bringing such a case is financial. My position, and maybe the position of others is that the motivation is political, a revolt against government mandates in general and a revolt against the Obama administration in particular. To the extent that these individuals working through their corporation will need to use the cover of religion in an insincere and hypocritical manner is what they will do. They believe they are in a war for survival of their rights and have no hesitation to using whatever weapon is available, even if it means falsifying their religious convictions.

Joe said...

Joe suggested the profit motive of a corporation plays this role. But, I am having difficulty distinguishing (in this context) the profit motive of a corporation from the mere self-interest of an individual.

Ordinary individuals generally (which is a fair reading) have less money and resources than corporations.

The corporate form as a documentary noted also is in effect a sociopath -- has no feelings, merely there for the good of the corporation. It is more likely to bend the rules or make whatever choices are necessary to make money.

Again, this doesn't mean persons might not. But, corporations are more likely too. It also, as noted, is a step removed from specific persons. This can make it easier as well.

A single person might have a conscientious concern about making a fraudulent religious argument. But, a corporation is more indirect, it is not as personal and like when a criminal punishment (such as the death penalty) is applied with some sense of remove, it is shown to be easier to apply questionable things.

DR's Eden Foods example does not really explain why corporations "especially" would have political reasons to do this. But, such reasons would be one more concern regarding for profit corporations in place specifically to make money, not for some religious purpose with like minded individuals like a college or charity.

Justin said...

The discussion about Professor Dorf's Tuesday post contained hints to how Hobby Lobby will turn religious sincerity into a major battleground. Consider two plaintiffs. One says, "I oppose abortion, which has a medical meaning to which I have no objection. And I oppose IUD's, because they cause abortions." The other says, "I believe, based on my religion, that what IUD's do is abortion, which I find sinful." Because RFRA requires us to honor sincerely held religious beliefs, we are apparently allowed to say to the first person, "Your objection is not based on a sincerely held religious belief, so you lose," whereas we are required to say to the second person, "Your objection, although factually wrong, can go forward." (And certainly, if a third person says, "I oppose contraception in general as matter of religious belief," then there is no truthiness objection at all.)

Based on the fact that I agree this is the test, and Dorf disagrees with me on what the test should be, I don't think you agree with Professor Dorf.