Hobby Lobby Wins: Reax

SCOTUS ends its current term with a dramatic decision:

The Supreme Court ruled Monday that some corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women. The justices’ 5-4 decision is the first time that the high court has ruled that profit-seeking businesses can hold religious views under federal law. And it means the Obama administration must search for a different way of providing free contraception to women who are covered under objecting companies’ health insurance plans.

Alito penned the majority opinion:

[Alito] held that this provision of the health care law, as applied to Hobby Lobby, ran afoul of the terms of the Religious Freedom Restoration Act (RFRA), a 1993 law signed by President Bill Clinton which says the government may not “substantially burden a person’s exercise of religion,” unless it has a “compelling” justification and has used “the least restrictive means” available.

“Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained,” Alito continued, “it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.”

Read the full text here. Noah Feldman frames it thus:

The core of the court’s opinion held that the Obama administration had failed to satisfy its burden under the law to show that it had adopted the least-restrictive means to respect religious liberty rights. To get there, the court first had to decide that closely held corporations are entitled to protection under the law. The court broke this into two questions.

The first was whether corporations are persons under RFRA. The court answered this with a resounding yes that extended to all corporations … This analogy between nonprofit and for-profit, however, had already been adopted by the Supreme Court in the Citizens United decision with respect to free-speech, so it’s not terribly surprising that it was adopted in the context of religious liberty.

The second question, however, was whether corporations could be said to hold religious beliefs. Here the court restricted itself to holding that closely held corporations can be said to possess the religious beliefs of their owners. This is not the same thing as holding that all corporations — and certainly not publicly traded corporations — would necessarily have the capacity to possess religious beliefs under federal law or under the U.S. Constitution.

Emma Green has more on that “closely held” distinction, emphasizing that “the most important question here isn’t actually about contraception—it’s about businesses”:

The Court has held that these businesses qualify as “persons,” meaning that they can have religious beliefs.

It’s worth noting that this ruling only applies to closely held private companies, or businesses that are owned by a small number of people who are mostly involved in the day-to-day operations of that business. Roughly 90 percent of American companies qualify as closely held, so this ruling will apply to a pretty sizable portion of the American business community. But it won’t affect coverage requirements for publicly held companies, which include large companies traded on the stock market—as Kevin Russell over at SCOTUSblog writes, the Court is “leaving for another day whether larger, publicly traded corporations have religious beliefs.”

Mataconis is comfortable with that distinction:

In the end, a closely held corporation is really nothing more than a partnership with tax advantages. What ever you might call it, it is still a business that is owned by a small amount of people. If Hobby Lobby were a partnership or sole proprietorship, there would be no question that the Greens [the Hobby Lobby owners] would be within their rights to assert a religious objection under the RFRA. Given that, it doesn’t strike me as being all that radical to say that they retain those rights when they enter into a different kind of business form that, ultimately, was chosen so that they could expand the company to the national operation employing thousands of people that it is today. We are still talking ultimately about the individuals who own the company and their rights, which is why this decision would not make any sense if you applied it to a publicly traded corporation owned by tens of thousands of individuals and institutions like Apple, or Exxon Mobil.

Meanwhile, Jason Millman clears up a common misconception:

The administration and supporters of the contraception mandate had warned that a broader recognition of corporations’ individual rights could enable more business owners to claim religious exclusions for other health-care services, such as blood transfusions or vaccinations, and civil-rights protections. The court today said its ruling narrowly applies to just the contraception requirement.

Ramesh clears up another:

Hobby Lobby doesn’t object to providing contraception; it objects to contraceptives that may act as abortifacients. (Donna Harrison provided some background information on this issue for NRO.) And the mandate isn’t in Obamacare. Even the very liberal Congress of 2009-10 never explicitly decided, or even really debated whether, to force companies to provide contraceptive coverage. HHS used the authority the law gave it to impose the mandate. Several pro-life Democrats who provided the law’s narrow margin of victory in the House have said they would have voted against the law had it included the mandate.

Kate Pickert specifies that line over contraception drawn by Hobby Lobby, whose “individual position is less extreme than many believe”:

The company objects to paying for morning-after pills and inter-uterine devices, but freely provides insurance that covers tubal ligation, birth control pills, condoms, diaphragms and contraception delivered via a patch or ring inserted into the cervix. More than 80% of all contraception users in the U.S. rely on these methods.

In another post, Ramesh tries to calm the coming backlash over today’s ruling:

There will be a lot of liberal fulmination today about an activist right-wing Supreme Court and impending theocracy. Just remember: 1) If Congress wants to require all employers to cover birth control, it can pass a new law that explicitly exempts itself from the Religious Freedom Restoration Act. This ruling wouldn’t be an obstacle to such a law.

But Sally Kohn is still freaking out:

In her dissent, Justice Ginsburg bristles at the majority’s “decision of startling breadth.” Justice Kennedy tries to argue otherwise in his concurring opinion, arguing that the majority opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” And yet majority opinion held that corporations are “persons” under the Religious Freedom Restoration Act! That’s huge! While the court limits part of its ruling around the contraception mandate to closely held corporations (defined by the IRS here), the essence of the decision is a profound and radical shift in corporate rights.

Further, the ruling in part eroded the distinction between religious non-profits (which were already exempted from parts of Obamacare) and private corporations. If you think going to the mall is like going to church, that makes sense. To everyone else, it’s nuts.

More on Ginsburg’s “dramatic dissent“:

[She] called the majority opinion “a decision of startling breadth.” Ginsburg read a portion of her decision from the bench on Monday. Addressing the majority of her colleagues — including all but one of the six men sitting on the Supreme Court — Ginsburg wrote:

In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.

The justice goes on to criticize the opinion’s interpretation of the religious freedom law, writing that “until today, religious exemptions had never been extended to any entity operating in ‘the commercial, profit-making world.'”

The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations…The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.

“In sum,” Ginsburg adds about the free exercise claims at the heart of this case,“‘[y]our right to swing your arms ends just where the other man’s nose begins.’”

What will this mean for women in the immediate future? Probably not much:

It is extremely likely that the Obama administration will by regulation provide for the government to pay for the [contraception] coverage. So it is unlikely that there will be a substantial gap in coverage.