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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