Hobby Lobby: Your Thoughts

Readers are far less sanguine about the ruling than I was. One writes:

You should be appalled, not reassured, by the Supreme Court’s ruling on Hobby Lobby precisely because it’s such a narrow ruling. The Court has ruled that only the religious views of abortion opponents count. The views of other religions do not count – Jehovah’s Witnesses (no blood transfusions), Orthodox Jews (no vaccinations on the Sabbath), Christian Scientists (no doctors, period). The narrowness of this ruling not only exposes it as the most blatantly political since Bush v. Gore, it is also the most blatantly Catholic – the result of having five Catholic conservatives in the majority.

Another reader thinks the narrowness of the decision is misleading:

I’m surprised that language in the majority opinion is read so credulously. The underlying reasoning in an opinion is more important than bald statements like “this opinion doesn’t mean that our reasoning can be taken to its logical conclusion.” Yes it does. That’s why we keep winning handily every time Lawrence v. Texas and its progeny (Windsor) comes up. Lawrence explicitly said “this case is not about gay marriage.” Scalia’s dissent howled that it in fact does – and he was right. Lawrence led directly to Windsor and every court that has considered the issue has cited Windsor (and its predecessor, Lawrence) for the proposition that marriage equality is a constitutional mandate. Pretending that Alito’s one throwaway sentence in this opinion somehow immunizes the reasoning from being applied to other areas looks to me like a refusal to grapple with the actual reasoning of the opinion.

About those other areas:

All the “reassuring language from Alito” you quoted specifically says that his opinion only addresses the contraceptive mandate because mandatory coverage of blood transfusions and vaccines weren’t a part of the case. He didn’t actually shut the door on another closely held company making a RFRA claim that mandatory coverage of blood transfusions or vaccines abridges religious freedom. If anything, he’s swung the door wide open for these kinds of cases. I could easily see a company make the argument that a person getting HIV is being punished by God for sinful behavior and treatments like Truvada abrogate punishment for that.

And the ramifications could continue:

I’m no lawyer, but I don’t understand why the objection to the compulsion of a small-business owner who is also a Jehovah’s Witness to provide transfusion coverage (or the compulsion of a Scientologist to provide his employees mental health coverage) would be any less legitimate.

Another reader:

What happens to women who take birth control for noncontraceptive reasons? Should Hobby Lobby be required to comply with the law for these women since they are not violating any religious beliefs? If so, would a woman have to promise Hobby Lobby she won’t use birth control for contraception to get covered? How would that work exactly? And by that same logic, is Hobby Lobby then exempt from having to provide other medications that have contraception as a side effect? Like chemo, for example?

But Hobby Lobby never opposed most kinds of contraception, including the pill. As we noted earlier:

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.

Update from a reader, who catches a typo in that excerpt from Kate Pickert:

Vaginated Americans – even the worst spellers among us – would note the inherent comic hopelessness of any such things as “inter-uterine devices” before letting that misprint meet the pixels of day (it should be “intrauterine” of course). Powerful as sisterhood gets, there is no device to link us up at the uteri.

Heh. Another reader:

I see others have already tread this ground, but I fail to see how Alito’s “caution” that

this decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.

… is in any way reassuring, because of the underlying principle that this decision, and Citizens United represents. It has granted limited liability corporate entities individual rights. The fact that a company is closely held or publicly traded should be immaterial; a corporation is not an individual, and therefore shouldn’t be granted rights ascribed to individuals by our constitution.

In fact, the only way the Religious Restoration of Freedom act applies to Hobby Lobby or any other corporation is if you explicitly decide that when Congress wrote a law protecting individuals, they implicitly meant corporations, too. But Congress doesn’t write laws that way; they know the difference between these two.

But if that’s the way that so-called conservative jurisprudence wants to go, they also need to consider this: If there’s no separation between the individual religious beliefs of business owners/controllers and their operations, why should there be any separation of liability. I’d like to see the legal logic that says you can have one without forfeiting the other.

Another:

I share your view of the opinion.  Although I haven’t read the whole thing yet, the holding is much narrower than it might have been.  It may also be a Trojan horse for the shareholders of corporations like Hobby Lobby.  As things stood before the opinion, shareholders enjoyed nearly absolute immunity from liability provided by the shield of the corporate entity.  The fundamental exception has been in cases where a corporation, usually as a result of commingling of funds, can be deemed the “alter ego” of its shareholders, or a group of shareholders.

What happens now when a corporation, through its policies and actions, becomes liable as a result of its execution of the religious biases of its shareholders?  Does the corporation become the alter ego for that limited purpose?  The full opinion probably carves out an exception to the exception to provide ongoing confidence in the integrity of the corporate entity theory. However, I think a creative plaintiff might argue that the justification underlying the holding (in certain closely-held corporations religious belief of the owners may be attributed to the corporation for purpose of compliance with certain statutory mandates) opens the door to liability.  In availing itself of a special, statutory immunity by virtue of assuming the religious beliefs of its owners, the corporation AND the owners become liable for torts arising from actions taken in the name of those religious beliefs.

Who knows?  Stranger things have happened in the wake of “narrow” opinions.

Why Am I Not So Alarmed By Hobby Lobby?

Supreme Court Rules In Favor Of Hobby Lobby In ACA Contraception Case

The obvious damning answer is that I am a man and no one has taken anything away from me – indeed the all-male majority who upheld Hobby Lobby’s religious rights specifically barred any procedure other than female contraception. If they did that for prescriptions for Truvada, for example, I might react differently. And I take that point. But its flipside is that this was a very narrow ruling, and the limiting of it to closely-held corporations, in which a small group of people with identical religious convictions can dictate the details of health insurance coverage they pay for, is not the great exemption for religious beliefs that some were fearing. It does not apply to publicly traded companies, for example. Here’s the reassuring language from Alito:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

Of course, employment discrimination against gay people is legal discrimination in many states, so this may not seem much comfort. But I suspect that if closely-held religious companies start firing people explicitly because they are gay and therefore not kosher, the prospects for both a federal employment non-discrimination law and a heightened scrutiny ruling for gays improve considerably. And the recourse in this case is a pretty simple one: just extend the existing third party arrangements for religious institutions to closely held, religiously based companies. The main worry – Ginsburg’s – that this could create a dangerous and expansive precedent seems a little overblown to me. If anything, the real precedent is the Religious Freedom Restoration Act, and that remains at the Congress’s discretion, not the Court’s.

But none of this is to say I find this development a positive one for religion.

A Christianity that seeks to rid itself of interacting with sinners or infidels is not a Christianity I recognize. A Christianity that can ascribe the core religious nature of a human being to a corporation is theologically perverse. Corporations have no souls. They do not have a relationship with God, as Jonathan Merritt points out here. And a Christianity that seeks to jealously guard its own defenses rather than embrace the world joyfully and indiscriminately is not one that appeals to me.

But in some ways, this can be seen as a libertarian ruling. It reframes the argument of the religious right toward the libertarian one of self-defense, rather than of the imposition of religious standards on others. And as long as women can have easy access to free or subsidized contraception through Obamacare by another method, it can rest sturdily on that foundation.

The worry, it seems to me, is that it further restricts the area of neutral public life. It turns the world of business into something much more like a world of theology. It chips away at the notion of a naked public marketplace, where we can leave our faiths behind and simply buy and sell goods and not worry about anyone else’s religion or lack of it. And that’s a loss. But if it is restrained adequately and imposed narrowly, not that great a one. And if we can lean on the side of religious freedom – even of the defensive and narrow variety – without restricting the actual access to some forms of contraception, why shouldn’t we?

(Photo: Sister Caroline (L) attends a rally in Chicago with other supporters of religious freedom to praise the Supreme Court’s decision in the Hobby Lobby case on June 30, 2014. Oklahoma-based Hobby Lobby, which operates a chain of arts-and-craft stores, challenged the provision and the high court ruled 5-4 that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom. By Scott Olson/Getty Images)

The Supreme Court vs President Obama?

US-POLITICS-INAUGURATION-SWEARING IN-OBAMA

Ilya Somin believes the number of times SCOTUS has ruled unanimously against the Obama administration on an issue of executive power says something about the president’s view of the constitution:

The administration’s unanimous defeats in significant constitutional cases cover a wide range of issues, including freedom of religion, property rights, executive power, and the Fourth Amendment. What these otherwise disparate cases have in common is a strong reluctance to accept even modest limits on federal authority.

Ramesh is on the same page:

Some of the complaints reflect the normal back-and-forth of party politics. Democrats charged that the George W. Bush administration seized too much power as well. Almost all of those complaints, however, centered on longstanding differences of opinion over the scope of a president’s Article II powers as commander-in-chief. The Obama administration has advanced broad readings of its power over a wider range of issues, without much in the way of Article II arguments.

The fact that even liberal Supreme Court justices appointed by Democratic presidents — two appointed by Obama himself — have repeatedly ruled that the administration’s positions ran afoul of the Constitution suggests that more than just party politics is at work.

But the questions involving Article II have much more profound implications. The notion that the executive branch has the right in wartime to seize an American citizen and torture him into incoherence strikes me as a more important question than whether someone can have access to free contraception if her employers disapprove. Orin Kerr finds this criticism unfair for another reason:

Ilya has some fun suggesting that Obama was the uniter, in that he personally brought the Justices together with his positions. But at least in the cell phone cases, the arguments likely were crafted mostly by career lawyers who have been in the government for a long time.

The Bush Administration DOJ took the same position back when it existed, at least to the extent that the arguments of DOJ lawyers can be imputed to “the Administration.” And state prosecutors took the same position in their respective state courts and in Riley. It’s the standard position you would expect any prosecutor to take, not something BHO cooked up one afternoon after reading his daily chapter of Saul Alinsky.

More broadly, I think the internal dynamics of the Justices are too contingent to draw easy conclusions from vote counts. Maybe my experience is quirky. But when I was a law clerk, I was struck by how a case that seemed very easy ex ante could somehow emerge 5-4 ex post. And the opposite was true, too: a very hard and close case ex ante could somehow emerge 9-0. The public would assume that the 5-4 cases were close and the 9-0 cases were simple and easy. But at least in my experience, the reality was sometimes far different.

(Photo: Members of the US Supreme Court after US President Barack Obama was sworn-in during the 57th Presidential Inauguration ceremonial swearing-in at the US Capitol on January 21, 2013 in Washington, DC. By Saul Loeb/AFP/Getty Images.)

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.

Quote For The Day

Supreme Court Rules In Favor Of Hobby Lobby In ACA Contraception Case

“The New Testament never — not one time — applies the “Christian” label to a business or even a government. The tag is applied only to individuals. If the Bible is your ultimate guide, the only organization one might rightly term “Christian” is a church. And this is only because a church in the New Testament is not a building or a business, but a collection of Christian individuals who have repented, believed on Christ, and are pursuing a life of holiness. Journalists or cultural commentators might use the phrase “Christian business” in colloquial or cultural terms, but conservative evangelicals must admit that the term makes no theological sense for them given their views of salvation, sanctification, and revelation,” – Jonathan Merritt.

(Photo by Joe Raedle/Getty Images)

How Would Hobby Lobby Fly In Europe?

Bruce Clark provides some perspective:

In many European countries, exceptions on grounds of conscience have been regarded as a political necessity whenever legislation on touchstone moral issues has been liberalized. In Ireland, where conservative Catholic sentiment remains strong even now, the legal sale of contraceptives faced huge hurdles when it was introduced in 1979; and it was duly agreed that anybody who was asked to be involved at any stage in the sale or distribution of such items could avoid that duty on religious grounds. Britain’s pharmacists were allowed by their self-regulatory agency to opt out of selling the morning-after pill; this is controversial. …

The really unusual thing about the Obamacare case, from a European perspective, is the fact that corporations, rather than individual believers or health workers, are seeking a conscience-based opt out. First, the very idea that private firms have a wide margin of discretion over their employees’ health-care arrangements is relatively unfamiliar to some Europeans, accustomed to free medical care or compulsory insurance. And in Europe’s comparatively secular societies, the idea of corporations taking a conservative stance on touchstone ethical issues is harder to conceive—if only because being “branded” as religious might alienate quite a lot of godless consumers.

What To Expect From Hobby Lobby, Ctd

Ilya Shapiro offers his take on the case’s day in court:

While Solicitor General Don Verrilli gamely pressed the plight of the “third parties” who would lose out if the challengers get an exemption – employees whose contraceptives wouldn’t be paid by their employer – there didn’t seem to be a majority on the Court who saw it that way. Justice after justice probed such issues as whether the government’s interest here was really that compelling given all the exemptions it had already granted (to small employers, religious nonprofits, and grandfathered plans) and whether there was no other way to achieve the same goal. And those are probably the points on which this case will ultimately turn: (1) the contraceptive mandate was not one of the Obamacare requirements that became mandatory as of January 1 (or whenever the administration stops illegally delaying them), and (2) the government could’ve ensured the provision of the contraceptive mandates a different way (e.g., new tax credits or existing public health programs). Despite the parade of horribles invoked by Justice Sotomayor regarding religious objections to blood transfusions and vaccines, at least five justices seemed to recognize that religious-liberty claims are meant to be adjudicated on a case-by-case basis – maybe six, given Justice Breyer’s lukewarm and infrequent interjections.

Dahlia Lithwick fears the contraception mandate is “doomed”:

The rights of millions of women to preventive health care and workplace equality elicit almost no sign of sympathy or solicitude from the right wing of the bench today. Nor does the possibility that religious conscience objections may soon swallow up the civil rights laws protecting gay workers, women, and other minorities. Religious freedom trumps because we’re “only” talking about birth control.

But as Jeffrey Toobin notes, “there was little doubt where the Court’s three female Justices stood”:

After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first 32 questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (11), and Elena Kagan (13). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power. Sotomayor asked, “Is your claim limited to sensitive materials like contraceptives, or does it include items like blood transfusion, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?” Clement hedged in response. When Clement asserted that Hobby Lobby’s owners, because of their Christian values, did care about making sure that their employees had health insurance, Kagan shot back:

I’m sure they want to be good employers. But again, that’s a different thing than saying that their religious beliefs mandate them to provide health insurance, because here Congress has said that the health insurance that they’re providing is not adequate, it’s not the full package. …

There is no such thing as a women’s position on this case or on any other issue. But there is such a thing as women’s voices, and with this case, especially, it was important that they be heard. On this day at the Supreme Court, they were.

Brian Beutler expects bad things to happen if Hobby Lobby wins:

Hobby Lobby’s owners have many options if they genuinely don’t want to offer their employees health insurance that covers contraception. They could stop sponsoring insurance for their employees altogether, though this would require giving up one of those lucrative tax preferences, and possibly paying a steep tax penalty. They could lobby to eliminate the employer mandate or the contraception mandate by statute. They could ask Congress for a limited exemption that would apply to companies, on the condition that they advertise the missing benefit to prospective employees, or push for the creation of a much smaller, subordinate penalty for companies that provide all guaranteed benefits except for contraception. That’s just for starters.

But if they obtain an exemption from the court on religious grounds, even one drawn very narrowly, the unintended consequences could reach much further than the relatively narrow dispute over contraception, significantly altering the balance of competing liberties and private interests in secular spaces, and be very difficult to reverse.

But Sam Kleiner thinks a ruling in favor of Hobby Lobby may not be a big deal after all:

At oral arguments today, Roberts may have “appeared to tip his hand,” as the Wall Street Journal’s Jess Bravin put it. While the government claimed that allowing Hobby Lobby to exempt itself from laws based on a religious claim would have far-reaching implications, Chief Justice Roberts in his questions appeared to be searching for a way to distinguish this case from claims that could be brought by a larger publicly traded company. We could, he noted, “simply say that it’s in this type of Chapter S Corporation that is closely held. Whether it applies in the other situations is—is a question that we’ll have to await another case when a large publicly traded corporation comes in and says, we have religious principles, the sort of situation, I don’t think, is going to happen.”

Guessing about decisions based on questions from the Supreme Court is a risky exercise, but we shouldn’t be surprised if the opinion comes out as a narrow victory for Hobby Lobby that tries to curtail the scope of its ruling to not included publicly traded companies. The decision certainly would be problematic; it would entangle the Supreme Court in having to determine which religious convictions are genuine enough from a corporation to warrant exemptions to laws. However, it would not be the kind of far-reaching assertion of corporate rights that liberals are dreading.

Meanwhile, Patrick Deneen argues provocatively that even if Hobby Lobby wins, Christianity has still lost:

Hobby Lobby is a significant player in a global economy that has separated markets from morality. Even as it is a Christian-themed brand, it operates in a decisively “secular” economic world. It is almost wholly disembedded from any particular community; its model, like that of all major box stores, is to benefit from economies of scale through standardization and aggressive price-cutting, relying on cheap overseas producers and retail settings that are devoid of any particular cultural or local distinction. The Hobby Lobby near us—on Grape Road in nearby Mishawaka – is about as profane imaginable a place on earth, accessible by six lanes of concrete roads where there is a heavy concentration of large chain retailers, where it anchors a sensory-deadening row of retail store fronts that border acres of cracked and barren pavement, awash in discarded plastic bags and crumpled fast food wrappers. … It defends its religious views as a matter of individual conscience, of course, because there is no moral, social, or religious context to which it can appeal beyond the autonomy of its own religious belief. Lacking any connecting moral basis on which to stake a social claim, all it can do in the context of a society of “disembeddedness” is seek an exemption from the general practice of advancing radical autonomy. Yet, the effort to secure an exemption is itself already a concession to the very culture and economy of autonomy.

What To Expect From Hobby Lobby

As Sam Baker sees it, “the legal battle over Obamacare’s contraception mandate is essentially tied as it heads into Tuesday’s Supreme Court arguments”:

Both sides have suffered some bad losses in lower courts, and the weaknesses that hurt them before could spell trouble again on Tuesday. The Court has combined two cases on the birth-control mandate – one the government won, and one it lost. Both challenges were filed by for-profit companies that say the mandate violates the religious beliefs of their owners. Five federal appeals courts have heard such challenges, and their rulings are a mess of conflicts. The courts not only disagree with each other, they’re also divided internally. As judges agreed on one question but disagreed on another, the 10th Circuit Court of Appeals cobbled together four different majorities in one ruling against the mandate. (That case, filed by Hobby Lobby, is one of the challenges before the Supreme Court this week.)

In other words, there are good reasons why each side might lose at the Supreme Court.

Tom Donnelly considers the conundrum facing Chief Justice Roberts:

On the one hand, Roberts is confronting the ACA for the first time since the conservative firestorm over his decision largely upholding the Act. There’s little doubt that he’ll be tempted to throw conservatives a bone, siding with Hobby Lobby and against the ACA.

On the other hand, a vote in favor of Hobby Lobby requires the chief justice to do at least three things that threaten major disruptive consequences and present serious downstream risks for the Court as an institution.

First, he must conclude that corporations have the same rights to religious freedom as living, breathing humans – something that the Supreme Court has never done. Second, he must unsettle centuries of well-established corporate law practice – a move at loggerheads with the Roberts Court’s (and John Roberts’s own) pro-corporate leanings. And, third, he must extend unprecedented protections to a secular employer, therefore opening the floodgates to new religious freedom challenges to countless other laws. In short, a vote for Hobby Lobby means endorsing a radical departure from well-settled precedent—perhaps nowhere more strikingly than in the realm of religious freedom.

Beutler says the Hobby Lobby case may expose hypocrisy on the conservative arm of SCOTUS:

If Hobby Lobby et al. manage to successfully pierce the veil, to the end of avoiding the contraception mandate, the court’s ruling, if drawn broadly enough, could be used to expose shareholders to liabilities that incorporation is intended to eliminate. It stands to reason that this contradiction at least partially explains why major corporate trade associations have either remained neutral in this case or actually come down on the side of the government.

It also creates an interesting test for this particular court, which, under the leadership of Chief Justice John Roberts, has been remarkably solicitous of corporate imperatives, but has also been sensitive to those who claim their religious liberties have been threatened or curtailed.

Scott Lemieux adds:

Before tomorrow’s oral arguments, let me note again that people interested in the latest ad hoc legal challenge to the ACA should definitely look at Marty Lederman’s series of posts, helpfully collected here. We’ve already discussed one of his crucial points, namely that there is no contraception “mandate.” Hobby Lobby is not legally required to compensate its employees with health insurance at all. The regulations imposed by the ACA are on insurance plans, not on the corporations per se. What is erroneously described as a “mandate” simply means that if corporations choose to take advantage of the tax benefits for compensating employees in health insurance rather than wages, the insurance has to meet minimum coverage standards. As is often the case with specious religious freedom arguments, the corporation wants it both ways, to get the tax benefits without providing the full benefits to employees.

Lowry dissents:

The truth is that the Obama administration wants to bring Hobby Lobby to heel as a matter of principle. In its pinched view of religion, faith should be limited as much as possible to the pews. In its attenuated regard for civil society, it believes government should overawe any person, business, or institution whose beliefs run counter to officially sanctioned attitudes.

Meanwhile, Volokh responds to critics of Religious Freedom Restoration Acts who say that a lot of religious exemption claims don’t have any real support in the Bible:

The American law of religious exemptions is individualistic. The right to a religious exemption belongs to a particular religious believer because of his sincere religious beliefs, whatever they might be. Small denominations are protected, to the same degree as large denominations. The same is true for dissenting groups within denominations. It’s even true for idiosyncratic religious believers. One doesn’t need a note from one’s priest to prevail in a religious exemption case.

Moreover, American courts are constitutionally forbidden from determining what the Bible – or any other religious work – really means. Courts are forbidden from determining whether a belief is reasonable.

Noah Feldman insists the issues go beyond the ACA, religious liberty and contraception:

If all this weren’t enough for you, the fourth issue is arguably more important than the first three: whether corporations are people, too. In Citizens United v. FEC, decided in 2010, the Supreme Court held that free-speech rights should extend to corporations because organizing people to speak more effectively in concert was one of the functions that corporations serve. The case – which as interpreted by the lower courts gave us super-PACs – involved a nonprofit corporation, but it extended to for-profit companies as well. Criticized by Obama in the Supreme Court’s face during a State of the Union address, the decision has been a touchstone for those who would brand the Roberts court as activist and pro-corporation.

The Hobby Lobby case requires the justices to decide if the rule they announced for the free speech clause of the First Amendment applies to the free exercise part of the same amendment. For some liberals, this means an opportunity to reargue Citizens United. For conservatives, it’s an opportunity to depict the rights of corporations in a far more attractive light than corporate political speech. Many sincerely see no difference between a company’s owners and the company itself. Liability should be limited, they believe, but not fundamental free exercise rights.

And finally, Jason Millman suggests Hobby Lobby isn’t necessarily the case to watch today:

At the same time Tuesday morning, the District of Columbia’s Circuit Court of Appeals will consider whether Obamacare allows premium subsidies to flow through federal-run health insurance exchanges. That case has been called “the greatest existential threat” to the survival of the health care law by one of Obamcare’s staunchest supporters. … If we’re just thinking about what these cases could mean for Obamacare’s future, the cases related to federal subsidies are a much bigger deal. Opponents to the law are challenging the IRS interpretation that Congress authorized individuals in states with federal-run exchanges to access premium subsidies.

If the opponents’ challenge is successful – and the law’s supporters say the cases are a real longshot – it would deal a major blow to the law in the 36 states with federal-run exchanges.