If You Don’t Profess a Mainstream Religion, Hobby Lobby Just Made You a Second-Class Citizen
The most important thing about the Hobby Lobby ruling wasn’t that it allowed the owners of a closely held corporations to opt out of including contraceptives in the health benefits available to their employees. The most important thing about the ruling was really that it gave people who profess the right kind of religious beliefs the privilege not to comply with laws that apply to everybody else.
Don’t be misled by the disclaimer in the majority opinion that the “ruling” in Hobby Lobby doesn’t open the door to the privilege not to comply with many other laws, as Justice Ginsburg noted in her dissent. Justice Alito knows – any first year law student knows within the first week of law school – that the “ruling” in a case is just the specific decision affecting the specific parties. Of course the “ruling” doesn’t include other privileges which were not argued in the case, such as those discussed by Justice Ginsburg.
What’s important isn’t the “ruling;” what’s important is the evidence and reasoning used to come to that ruling. That is the important precedent in Hobby Lobby, and that is what tells us what kinds of privileges those who profess a religion have that other citizens do not, and something about what it takes to qualify for those privileges. This takes a little analysis, so please bear with me.
The reasoning in Hobby Lobby, and therefore the precedent that it sets for other kinds of issues, goes like this:
- The Religious Freedom Restoration Act (“RFRA”) prohibits Federal government action (that is, a law or enforcement activity) from “substantially burdening” the “exercise of religion” unless the action is the “least restrictive means” of serving a “compelling government interest.” The “exercise of religion” must be based on “sincere belief” and not just a “pretext” to get a financial benefit. All of these terms matter in deciding whether a given law violates the RFRA.
- The plaintiffs in Hobby Lobby were corporations owned by individuals who belong to Christian denominations and who have written compliance with Christian doctrine into their corporate documents, and generally profess to comply with Christian doctrine, and have done so for many years. While they are members of different denominations, each denomination has a doctrine that abortion is immoral and that members of their denomination should not facilitate abortions. Because of these facts, the individuals who own the corporations have a “sincere belief” in this doctrine, and it was not a pretext.
- Each corporation maintains a health benefits plan for its employees. The details of how such plans work wasn’t analyzed in the opinion, but it is important to understand how they work in order to understand what the Hobby Lobby majority considers a “substantial burden” in the “exercise of religion.” A health benefits plan is a fund a company sets up as part of the compensation it pays its employees in addition to their wages. The plan sets the general terms for the kinds of health care it will cover and how it will pay for it, subject to lengthy and complicated Federal requirements. The employer doesn’t decide what health care an employee (or employee’s covered family member) gets or how she gets it, but is legally required to pay to the extent health care is covered by the plan.
- The “exercise of religion” by the owners of these corporations is “substantially burdened” if the corporation is not allowed to exclude contraception from coverage, because the individuals who own the corporation believe that allowing contraception facilitates abortion. Whether or not this is scientifically true is irrelevant; the only thing that matters is that the belief that it is be “sincere.” It is also irrelevant whether or not any employee ever actually obtained contraception, or if a drug or device (e.g. an IUD) which can be used as a contraceptive was actually prescribed and used to treat a condition such as polycystic ovarian disease (PCOD), for which it might be the preferred treatment and would not act as a contraceptive.
- The majority opinion assumed without deciding that the government has a “compelling interest” in ensuring that employee health benefits plans include the kind of contraceptives the plaintiffs objected to. However, it held that requiring the corporations’ benefits plans to pay for such drugs and devices was not the “least restrictive means” of serving this interest, because the government could pay for the drugs and devices for the plans’ members instead.
There are a lot of remarkable things about this reasoning from a lawyer’s point of view – it really is a breathtaking break with well-established corporate and employee benefits law. But consider some practical scenarios where the same kind of reasoning could be applied:
- Here’s a simple one. The doctrine of the Church of Scientology is that mental health care is a bad thing. Why couldn’t a health plan provided by a company owned by Scientologists exclude mental health coverage? Is Scientology not something you can believe in “sincerely” because its doctrines are so decidedly not mainstream and it was created only a few decades ago by a science fiction writer? If I were Tom Cruise I’d thoroughly object to that. And while there may be a compelling government interest in making sure of mental health coverage, wouldn’t a less restrictive means of serving it be to have the government pay for it?
- Here’s a harder one. Assume a church whose doctrine teaches that women must be subservient to men – there are a fair number of them out there. Assume some members of that church go into business together in a closely held corporation and open up a chain of coffee shops. Why can’t that company adopt policies which prohibit women from supervising men? While there may be a compelling interest in preventing discrimination, wouldn’t it be less restrictive to have the government provide job training and placement services for women who wanted to be in positions where they could supervise men, in other companies or maybe in government itself? Perhaps government could be required to provide such positions for them? That would certainly be less restrictive from the church members’ point of view.
- Here’s another harder one. Assume a church whose doctrine is that homosexuality is an abomination – again, there are a fair number of them out there – and again, assume members go into business together. Why can’t they refuse to hire homosexuals? If the company is paying someone who is a homosexual wages, isn’t it likely that some of that will be spent to facilitate homosexual activity? Again, wouldn’t it be less restrictive for government to have a jobs program for homosexuals, than to require the company not to discriminate against them?
- Here’s another harder one, in a slightly different area. Assume the company in the previous example is a bakery which specializes in wedding cakes, and that part of their doctrine is that homosexual marriage is also wrong. Why can’t the bakery refuse to sell a cake for a homosexual wedding? Wouldn’t it be less restrictive for the government to arrange for a cake to be provided by a bakery which doesn’t have such scruples?
I should also point out that only individuals who have “sincere religious beliefs” (and the companies they own) that are permitted to discriminate in these ways. Atheists, agnostics and those who are “spiritual but not religious” are not entitled to this privilege. Neither, I suppose, are those who are members of religious denominations which don’t have such issues, but “only” have sincere personal beliefs.
Hobby Lobby gives those who are members of established religions, and the companies they own which are in all other ways considered to be persons separate from them – the privilege of not having to comply with laws they disagree with. The individuals probably have to be members of an established religion, not some upstart or non-mainstream religion whose beliefs nobody could “sincerely” believe, and the doctrines of that religion have to support their disagreement. But any time they do disagree, if somebody else – in particular the government – can take care of the problem, they don’t have to follow the law. And if you don’t think there are going to be a lot of cases brought to test just how far this can be stretched, you aren’t familiar with the workings of the American legal system.
Nobody else gets to do this. Not the government, not companies owned by people who aren’t particularly religious, not atheists, not agnostics, not the unaffiliated but spiritually inclined, not members of religions with inclusive doctrines. It doesn’t matter how moral you are or how sincere your personal beliefs are – you just aren’t in the privileged class.
This is just a statute, of course, and only applies to Federal laws. This means Congress could fix it, which it surely won’t in its current makeup. It also means state laws can still be applied, but that means the state has to have and maintain such laws – and of course, the Supreme Court might yet decide that the same analysis applies under the First Amendment, so the same analysis would apply to states too.
Pretty amazing, isn’t it?