Supreme Court’s Hobby Lobby decision puts faith in compromise

By Jay Michaelson
June 30, 2014

Anti-abortion demonstrators high five as the ruling for Hobby Lobby was announced outside the U.S. Supreme Court in Washington

On Monday the Supreme Court decided its most anticipated case of the year. According to a sharply divided 5-4 court, the government cannot compel a closely-held corporation to provide contraceptive coverage as part of its Affordable Care Act-mandated employee insurance plans.

This was the expected result: four conservatives in favor, four liberals against, and Justice Kennedy concurring in the middle. Yet while many are calling the ruling a victory for conservatives and a loss for women’s (and by extension, LGBT) rights, Justice Alito’s majority opinion is actually far more limited than many had expected. Here’s why.

First, the opinion is limited to closely-held corporations. This distinction makes sense. An individual’s beliefs may be attributed to a family-owned business much more reasonably than to a large corporation. Hobby Lobby, the named plaintiff in the case, is indeed large: it has over 500 stores, and over 13,000 employees. But it is family-owned, and the owners’ devout Christian faith is evident throughout the company — including its advertising, product choices and employment policies.

Of course, progressives should object to any attribution of religious belief to a for-profit business. It’s bad enough that corporations are people — now they are people with consciences. But the ship has already sailed on this question. As Justice Alito noted at oral argument, corporations are “persons” as defined in numerous federal laws. That would seem to include the 1993 Religious Freedom Restoration Act (RFRA), which set a high standard for any government action that affects religious exercise, and is at issue in this case. Companies having religious beliefs may not make much sense, but the Supreme Court is not addressing this question de novo; there are already laws on the books.

A protester dressed as a copy of the Bible joins groups demonstrating outside the U.S. Supreme Court in WashingtonTo be sure, in Hobby Lobby Justice Alito defended this proposition, writing that “a corporation is simply a form of organization used by human beings to achieve desired ends.” Well, yes and no — it also has its own legal status, liabilities, and interests. But it is indisputably a “person” under other laws, and now under RFRA as well.

Second, Justice Alito was at pains to say “our holding is very specific.” The logic of the opinion can easily be extended: if Hobby Lobby can opt out of this law, then why not out of non-discrimination laws, to take but one example, as well? Justice Ginsburg raises this point in her unusually stern dissent.

Yet Justice Alito, and the concurring opinion by Justice Kennedy, specifically disclaimed this breadth. Such statements are what lawyers call “dicta,” judicial utterances that don’t quite have the force of law since they’re not part of the foundation of the opinion. And surely, religious liberty advocates like the Alliance Defending Freedom and the Becket Fund (two of the organizations engineering this litigation) will quickly file more lawsuits.

But there’s dicta, and there’s dicta. These overt limitations in the court’s opinion do suggest that future Hobby Lobby-based challenges will face an uphill battle. That is extremely important. Progressives are, of course, concerned about the thousands of women who will not receive contraceptive coverage from these employers. But they are even more concerned about the slippery slope: that a broad religious exemption here could lead to exemptions everywhere. Justice Alito’s and Justice Kennedy’s dicta may keep that from happening.

Third, and perhaps most relevant to the actual people involved in this case, the court only reached this result because there is already another system in place to provide this coverage: the Obama administration’s backup plan for religious nonprofits. Under that plan — hammered out in a 2011 compromise with the same religious organizations that later brought this suit — religiously-affiliated nonprofits could opt out of the contraception requirement, and the government would pick up the tab.

Technically speaking, this backup plan means that the requirement itself is not the “least restrictive means” of securing contraception coverage, and is a key reason why the court found in Hobby Lobby’s favor. In other words, it’s hard for the government to say “this is the only way to do it” when, in fact, there’s already another way to do it.

But the “backup plan” also has important real-world impact. Almost certainly, the women denied coverage by Hobby Lobby and similar companies will be able to opt-in to the “backup plan” and receive coverage that way. This means a great deal to those women and their families, of course. It also matters a great deal to everyone else, because when there’s no “backup plan,” there can be no religious exemption.

That means no exemption to nondiscrimination law, no exemption to other medical coverage, no exemption to any requirement where another mechanism is not already in place.

Is Justice Ginsburg wrong that this is “a decision of startling breadth”? Only time will tell. On its face, Justice Ginsburg is incorrect. But on the decision’s logic, she may well turn out to be right.

For example, given the opinion’s claim that a corporation is “simply a form of organization,” why not extend Hobby Lobby to publicly-traded as well as closely-held corporations? Indeed, Justice Alito imagines what this might be like in his opinion, and seems not to mind it. That would remove one important limitation.

And even if the court says that Hobby Lobby doesn’t affect anti-discrimination law, it has at least opened the door to more challenges. It may, indeed, invite “havoc,” as Justice Ginsburg’s dissent predicts.

By way of comparison,Windsor  —  the same-sex marriage case decided only one year ago — was also written quite narrowly. Yet in just twelve months, we’ve seen a cascade of marriage cases expanding Windsor and finding marriage bans in a dozen states to be unconstitutional.

And finally, there is the cultural impact. Many commentators seem to forget that Hobby Lobby is also a case about women. Justice Ginsburg did not. Quoting Planned Parenthood v. Casey, she reminded us that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Even if Hobby Lobby doesn’t practically affect the choices of the women to whom it applies, it is yet another blow against women’s freedom as an important cultural, and constitutional, value.

Still, given how much broader the opinion could have been, and the fact that it was written by Justice Alito — who was contemptuous of the government’s position at oral argument and who is himself a devout Catholic — it looks on closer inspection to be less of a cataclysm than a compromise.

PHOTOS: Anti-abortion demonstrators high five as the ruling for Hobby Lobby was announced outside the U.S. Supreme Court in Washington June 30, 2014. REUTERS/Jonathan Ernst

A protester dressed as a copy of the Bible joins groups demonstrating outside the U.S. Supreme Court in Washington June 30, 2014. REUTERS/Jonathan Ernst


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“Even if Hobby Lobby doesn’t practically affect the choices of the women to whom it applies, it is yet another blow against women’s freedom as an important cultural, and constitutional, value.” Constitutional value? Abortion inducing drugs, the taking of human life is NOT a value. In a culture of death perhaps it could be considered a value…but today, even with a marginal majority, children’s voices were heard through those who defended them.

Posted by bluewater23000 | Report as abusive

Drip, drip, drip – one step at a time the current “conservative” supreme court boys are eroding the rights of average Americans and their real target – as defined by ALEC in the 70s – is to get American women back in their homes, barefoot, pregnant and submissive and get minorities out of the voting booth. However, they have finally gone too far. We will elect Independents and Democrats this November, 2016 and beyond to overturn the 1993 Religious Freedom Restoration Act (RFRA), which puts the rights of religious organizations to intrude on our lives ahead of our personal rights. No, No, No. This will not stand. Nor will “corporations are people” or “money is speech”. The vast majority of Americans do not agree and are prepared to amend the Constitution to reflect the 21st century.

Posted by njglea | Report as abusive

the Dred Scott decision for women’s rights and others and authored by a right wing judicial extremist and Obama hater who lied his way onto the court. alito is judicial scum.

Posted by gregmedia1 | Report as abusive

Jay the way in which you set forth a logical nterpretation of the Hobby Lobby decision is seamless and silky. Well put, as was your piece in The Daily Beast.

Posted by JimNealCHI | Report as abusive

Sorry, I think Hobby Lobby is and always has been defined as persons of faith and their whole credence as a business has been consistent with that faith. The mere fact that some are having such a hard time accepting that a family owned christian value business DOES have the liberty afforded them under the Religious freedom act is just pathetic. The mere fact that women truly believe that Hobby Lobby is responsible for their sexual timing issues and stopping their egg from being fertilized during ovulation under the slam through ACA law is also a testament to how messed up personal responsbility is in America. Supreme court ruling on this one was dead on and persons and organizations of faith are entitled to the liberties of religious freedom. This company has never harmed a non believer, forced religion onto workers, made workers pray at work, they don’t spam their customers with bible verse, they don’t make applicants check a box declaring whether they are christians, they pay very good wages for full time workers which is rate in the retail industry. So good for the judges that decided this case based on the case’s merits alone. It wasn’t a broad stroke discrimination ruling as many screeching liberal nut cases are pretending it is.

Posted by BGoldberg | Report as abusive

Hobby Lobby pays a minimum wage of $14.00 dollars an hour to full time employees. They provide SIXTEEN different contraceptives under their insurance plan There are only four contraceptives they do not cover. The media has made it sound as though HL refused to cover all contraceptives. That simply is not true. I think a lot a people are going to want to work there. How many other retail stores pay $14.00 an hour?

Posted by moonhill | Report as abusive

How did we wind up with a pack of useless, old, narrow, groupthinking drones on the Court? Of course this turd of a decision joins Citizens United and Heller as abominations that at some point in the future will be completely reversed. You don’t get to choose what your employees do with benefits. Corporations are not people. Gun nuts are not a well-regulated militia.

Posted by markhahn | Report as abusive

How did we wind up with a pack of useless, old, narrow, groupthinking drones on the Court?

It is called diversity – you are part of the group think that limits peoples freedom of expression. Whether someone wants to piss on a Crucifix or adore it – is none your you’re fascist business. Get off you can and help people – stop whining for benefits. Your perennial victimhood is a really bum job.

Posted by xit007 | Report as abusive

I think this misses an important point, which is that a corporation is not supposed to be just its owner or owners under an assumed name. There is a legal separation, even among closely-held corporations, that must be preserved if the entity is not a sham. (And when it is found to be a sham, the owners rightfully lose their personal immunity from the entity’s liabilities.)

This decision smacks of the political, precisely because Alito tries to characterize it as a narrow one. He would pierce the separation and permit the entity to become the personal alter ego for the purposes of one class of owners, and not others.

Posted by maximillianwyse | Report as abusive

Hey … If this were really about religion… wouldn’t single men be denied viagra?

Posted by michaelryan | Report as abusive

Closely held corporations are mostly tax shams so the rich can avoid estate taxes. Works like this… David Green launches hobby lobby on less than $1000. At some point he creates a corporation with different classes of stock. He gives his kids stock that have little value. Over time he converts the shares so the value is shifted to his children’s stock. The kids get huge capital gain and live off dividends taxed at 15%. Estate tax is completely dodged.

Another advantage of being rich is the laws are written to your favor – tax wise – and religion wise.

Could it get any better???

Posted by michaelryan | Report as abusive

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