"The Bait-And-Switch Behind Today’s Hobby Lobby Decision"
CREDIT: ThinkProgress/Sy Mukherjee
For many years, the Supreme Court struck a careful balance between protecting religious liberty and maintaining the rule of law in a pluralistic society. Religious people enjoy a robust right to practice their own faith and to act according to the dictates of their own conscience, but they could not wield religious liberty claims as a sword to cut away the legal rights of others. This was especially true in the business context. As the Supreme Court held in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
With Monday’s decision in Burwell v. Hobby Lobby, however, this careful balance has been upended. Employers who object to birth control on religious grounds may now refuse to comply with federal rules requiring them to include contraceptive care in their health plans. The rights of the employer now trump the rights of the employee.
To achieve this outcome, Justice Samuel Alito’s opinion on behalf of a bare majority of the Court engages in a kind of legalistic bait-and-switch. It takes a law Congress enacted to serve one limited purpose, and expands that law to suit Hobby Lobby’s much more expansive purpose.
In its 1963 decision in Sherbert v. Verner, the Court announced that laws that impose an “incidental burden on the free exercise of [a person of faith's] religion” may only be applied to them if the law is “justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.’” As anyone who has studied constitutional law will immediately recognize, this “compelling state interest” framework is the language judges use when the wish to invoke a test known as “strict scrutiny” — the highest test that exists under American constitutional law. Typically, laws that are subjected to strict scrutiny fare very badly. Strict scrutiny is the constitutional standard used to evaluate laws that discriminate on the basis of race, for example, and it only permits laws to be enforced when they further a compelling government interest and when they use the least restrictive means of doing so.
It soon became clear, however, that when the Court considered religious liberty claims it was actually engaged in something much less rigorous than strict scrutiny. As Professor Adam Winkler documented, courts uphold less than one-third of all laws they subject to strict scrutiny — yet they rejected 59 percent of the claims brought by plaintiffs claiming religious liberty. A different study reached even starker results — determining that nearly 88 percent of religious liberty plaintiffs lost under the standard announced in Sherbert.
The most likely explanation for this fact is that Sherbert and its progeny were careful to maintain the balance between religious liberty and third parties’ rights. In Sherbert itself, the justices emphasized that they were siding with a plaintiff who claimed a religious liberty right not to work on Saturday because “the recognition of the appellant’s right” did not “serve to abridge any other person’s religious liberties.” Less than a decade later, in a case called Wisconsin v. Yoder, the Court once again emphasized that it was exempting an Amish family from a law making school attendance mandatory because it did not perceive any harms to third parties. “This case,” the Court explained, “is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”
Ten years after that, the Court decided the Lee case, with its proclamation that a business owner’s own religious views “are not to be superimposed on the statutory schemes which are binding on others” engaged in a similar business. Allowing an employer to ignore a law protecting its employees, the Court explained “operates to impose the employer’s religious faith on the employees.”
In 1990, however, the Court briefly narrowed the protections offered to people who object to laws on religious grounds in an opinion authored by Justice Antonin Scalia. This unpopular decision inspired the Religious Freedom Restoration Act (RFRA), which formed the basis of Hobby Lobby’s legal claim. Yet, the purpose of RFRA was not to change the longstanding balance between religious liberty and the rights of third parties. Rather, it was to restore the many decades of religious liberty law that began with the Sherbert opinion. Indeed, RFRA explicitly states that its purpose is to “restore the compelling interest test as set forth in Sherbert v. Verner  and Wisconsin v. Yoder .”
Justice Alito’s opinion, however, tosses this explicit statement of congressional purpose aside, although he offers little explanation for why he is justified in doing so. His best effort is a reference to a 2000 law that amended one of RFRA’s definition of an “exercise of religion” to take out an explicit reference to the First Amendment. According to Alito, the purpose of this amendment was “an obvious effort to effect a complete separation from First Amendment case law” as laid out by cases like Sherbert and Yoder. Yet, it is difficult to square this interpretation with the fact that the RFRA statute still provides that its purpose is to “restore the compelling interest test as set forth” in Sherbert and Yoder.
The upshot of Alito’s opinion is that, for the first time in American history, people with religious objections to the law will be able to ignore many laws with impunity unless the government’s decision to enforce the law overcomes a very high legal bar that few laws survive. The full implications of Hobby Lobby, however, may not be known for years. When cases like Sherbert, Yoder and Lee were still good law at the federal level, plaintiffs alleging religious liberty alleged that they could engage in race discrimination and discrimination against women, and they also claimed immunity to paying Social Security taxes and the minimum wage. Though the Supreme Court probably isn’t ready to revisit these cases, religious business owners are likely to find many other regulations they can now object to on religious grounds. And all of these objections will come to court with vigorous tailwind.
Alito goes to great pains to deny that his opinion will open up a parade of litigation enabling employers to deny other forms of health care coverage to their employees. The government, Alito notes, “points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for “a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions.” Nor, Alito writes, has the government “provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.” This may very well be true, but there is an easy explanation for why it is true. Before the Supreme Court’s decision in Hobby Lobby, employers who object to blood transfusions or vaccinations had no reason to believe they would win in Court. Sherbert, Yoder and Lee were the law.
Alito also emphasizes that there are other steps the government could take to ensure that Hobby Lobby’s employees have access to birth control, such as by paying for it themselves or by extending an accommodation for religious non-profits so that it also covers private employers. For this reason, the biggest loser in Hobby Lobby may very well be LGBT Americans. The courts are already swelling with business owners claiming that their religion entitles them to discriminate against gay people. Monday’s decision does not ensure their victory, but their chances look much better now then they did just 24 hours ago.
In an ominous passage, Alito denies that his opinion will allow employers to engage in a particular kind of discrimination — “The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” Left unspoken in this passage is whether the justices agree that the government has a compelling interest in preventing other forms of discrimination, such as discrimination against women or gay people.
In fairness, Justice Anthony Kennedy writes in a concurring opinion that he may be less sympathetic to religious liberty claims in “which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.” That may reflect his unease with a future case claiming that religious belief is a license to discriminate against LGBT employees. In any event, however, Monday’s decision casts a cloud of uncertainty over an area of the law that was quite settled 24 hours ago. And it does so based on little more than a bait-and-switch.