In the wake of the Hobby Lobby decision the internets lit up with outrage from the left (or what passes for the left). Then we were treated to patronizing explanations that the outrage was not merited because it could have been worse. Here’s a brief selection: Matt Bruenig in The Week: Hobby Lobby Will Not Lead Us Down A Slippery Slope Of Religious Exemptions; Emma Green in The Atlantic: The Supreme Court Isn’t Waging a War on Women in Hobby Lobby; Andrew Koppleman in The New Republic: The Hobby Lobby Decision Was a Victory for Women’s Rights. The gist of these opinions is that this is just another case of balancing the rights of one group to free exercise of their religions against the rights of another group to something generally unspecified. I can’t tell you how much I don’t want to hear more from these people about how I should keep my powder dry until the Supremes do something awful. This is a terrible decision, motivated by politics and fundamentalist/patriarchal religious views that will not be applied in any other part of the legal system, and is only possible in this case because it attacks women’s rights.
The generally unspecified thing getting balanced out of the picture is our right to participate in the legislative system to achieve our ends, ends that we think benefit society. The decision denies that right to certain interests related to the lives of women. The demand that contraception be covered by insurance is a proper subject for legislation, and over half of the states have laws requiring that health insurance companies cover contraception, for excellent reasons. But suddenly, when we reach the point of having a national law, the Supreme Court steps in to say that religious views about contraception trump the rights of the rest of us to legislate about subjects we think are crucial to the health of society. Remember, no one is telling the fragile flowers who own Hobby Lobby they have to use birth control of any kind. These laws merely say that health insurance plans have to cover contraception drugs and medical devices.
Cases that reach the Supreme Court generally involve political considerations. Usually they are close calls on matters of constitutional law, or important issues of statutory construction. There are a number of general rules which courts use to limit the appearance of outright political action, such as stare decisis. Hobby Lobby is a statutory construction case, and should be governed by the rules of statutory construction, rules developed over centuries to keep courts out of the legislative sphere. The conservatives on the Supreme Court aren’t interested in such limits. They simply ignore them when necessary to achieve their political ends. One way to measure the political content is to see the degree of deviation from the established rules of statutory construction.
The statute in this case is the Religious Freedom Restoration Act, which provides:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Persons seeking to apply RFRA must show that some act of government burdens their exercise of religion substantially. So in this case, we would expect Samuel Alito, author of the opinion, to show how Hobby Lobby is a person, because it’s a gigantic corporation, how it exercises its religion, and how the requirement that health insurance plans provide contraceptive coverage “substantially burdens” that exercise of religion. Let’s just look at the first, whether Hobby Lobby is a person for purposes of its claims of exercise of religion.
Hobby Lobby is a person thanks to the Dictionary Act, a general statute that says that the word “person” includes a corporation, unless the circumstances indicate otherwise. Now you might think that a corporation can’t exercise religion, so this should be a circumstance that indicates that person should not include a corporation. But, we know that most religions operate directly through non-profit corporations, to keep their members protected from liability for the acts of the ministers or priests. Catholic dioceses found this very useful in hiding assets from legal claims of people sexually abused by their priests, for example, and several ran to the shelter of Chapter 11. Thus, we know that some corporations can “exercise” religion, in the sense that the members hide behind the corporate shield to protect their personal assets. Alito takes the next step:
No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations. Id. at 20, emphasis in original.
That’s just stupid. The Dictionary Act tells us something general. It says that unless circumstances indicate otherwise, the term includes a corporation. The Obamacare statute and regulations provide a specific answer to this question. Some corporations, specifically certain nonprofit corporations operated for religious purposes, are treated somewhat differently for purposes of the contraception mandate. The legislation and rules already accommodates religious views to the extent that normal people understand the way corporations exercise religion. But that isn’t good enough for the Five Catholics who run things on the Supreme Court. No. They tell Congress that it has misunderstood the breadth of the Free Exercise Clause. That clause applies to all persons, including private for-profit corporations.
Let’s get to the meat of this case. No one has any idea of what a corporation believes, and no one has any idea how to prove anything related to the beliefs of a corporation. Alito explains that this case is about Hobby Lobby, not about a company owned by many thousands of shareholders, many of which are themselves corporations or other legal fictions.
HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders – including institutional investors with their won set of stakeholders – would agree to run a corporation under the same religious beliefs seems improbable. Id. at 29
There’s a legal principle for you: some corporations can decide to be religious and others can’t. It’s up to courts to figure that out. As absurd as it sounds, Alito is arguing that courts should decide which corporations are exercising their religious views and which aren’t. That’s a terrible idea and a worse way of carrying out the distinction among entities that the opinion seeks to avoid.
Government won’t want to assert that the corporation and whatever kind of human owns it are lying, and the courts won’t want to deal with the discovery issues that would arise, so there isn’t going to be any proof or any trial, just as there wasn’t in Hobby Lobby. How exactly are courts supposed to “weed out insincere claims” in real life, as opposed to Alito’s fantasy world?
Well, the plain fact is that we draw distinctions among corporations all the time. It is obvious that there is a difference between Hobby Lobby and the Little Sisters of the Poor. One is religious. One filled out a bunch of forms explaining how it is a religious entity, and the other didn’t. It is ridiculous to assert as a principle of statutory construction that they are alike for purposes of the RFRA.
Another way to see the political content is to look at the things Alito has to say to limit the case. You can’t raise vaccinations or transfusions as a religious issue. Pacifists can make the exact same claim about participation in a tax system that uses their money to murder people in Yemen and Pakistan and wherever else the bombs fall under the direction of the Dronemasters, so Alito has to say that won’t be allowed. This case, says Alito, only applies to a religious belief about contraception, a doctrine sanctioned by Alito’s religion. All corporations have the right to operate under the religious views of some humans, unless Alito and his collaborators say no. There’s a proper legal principle for you.
So, yes. This is a terrible decision. The right of the people to make laws that benefit them is limited by alleged religious beliefs of some fundamentalist religious people. The magic is done by crappy statutory construction. People are right to be violently angry about this case, and it’s only going to get worse if people don’t call out the intellectual dishonesty of the Supreme Court.
Photo in the public domain