Balkinization  

Wednesday, December 11, 2013

Hobby Lobby Part I -- Framing the issues

Marty Lederman

Earlier this month, the Supreme Court announced that it will consider two related cases involving claims for religious exemptions to what has commonly (but inaccurately) been called the “contraception mandate” under the Affordable Care Act—Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Corp. v. Sebelius.  The cases will be consolidated for oral argument, which the Court will almost certainly hear between March 24 and April 2.  The first briefs in the cases will be filed on January 10.  Amicus briefs on both sides are due January 28.

The cases raise a host of potentially difficult and complicated questions.  Eugene Volokh has published a series of posts about many of those issues on the Volokh Conspiracy; his introductory post is here.  I asked Eugene to consolidate them all in a published Word document for readers’ convenience—and he did, in 53 single-spaced pages!  In this case, length is a distinct virtue:  Eugene’s herculean effort is of enormous benefit to those wishing to understand and follow the case; and he neatly separates out the various topics so that the reader can easily pick and choose among them. 

I agree with much, but not all, of what Eugene writes; in the posts that follow I’ll focus on some of the questions on which we disagree.  But regardless of what one thinks of the merits of many of these issues, Eugene’s magnum opus offers a very useful and engaging exposition of the two cases and of many of the arguments we can expect to see from the parties and their amici.  In particular, Eugene’s first three posts alone (1A through 1C) offer a very useful primer on the statute at issue in these cases, the Religious Freedom Restoration Act (RFRA)—which saves me a bunch of exposition here.

Meanwhile, here at Balkinization, we’ve already published several important posts—this one by Joey Fishkin, and a series of three posts on the Establishment Clause questions raised in the case—here, here and here—co-authored by Micah Schwartzman, Rich Schragger and Nelson Tebbe.  These posts all appropriately emphasize that although the parties in the two cases are employers and the government, the legal questions depend crucially on how the law affects a third set of actors who are not formally parties to the case—namely, the millions of female employees of large, for-profit corporations.

In the series of posts that I’ll be blogging in the coming days, I hope not to repeat much of what Eugene and my fellow B’Zation bloggers have already written.  I thought it might be useful, however, to clarify some of the misconceptions and confusions surrounding the cases and the laws governing them, and to probe a bit further into some of the many complex questions they raise.

I begin, below the fold, with a general framework for thinking about the cases—one that will inform most of my posts to follow.



As Eugene Volokh has explained at much greater length, the principal questions presented to the Court in Hobby Lobby/Conestoga Wood concern the Religious Freedom Restoration Act, a 1993 statute providing that the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government demonstrates that the application of the burden to the person in question (that is, denying an exemption) “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”  42 U.S.C. § 2000bb-1. 

The petition in Conestoga Wood also nominally invokes a claim under the Free Exercise Clause of the First Amendment.   I predict, however, that the constitutional question, as such, will consume only a tiny fraction of the total briefing, and virtually none of the Court’s attention, because if the plaintiffs win under RFRA they won’t need their Free Exercise Clause claim, and if they lose under RFRA it’s virtually inconceivable they’d win under the Free Exercise Clause.  For that reason, virtually all of my analysis in these posts will be about RFRA.

Even so, it’s important to stress at the outset that Supreme Court precedents under the Free Exercise Clause are certain to play a major role in the case, because it is fairly well-established, and not significantly contested, that Congress intended RFRA to incorporate by reference “the compelling interest test as set forth in ... Federal court rulings  [between Sherbert v. Verner (1963) and Employment Div. v. Smith (1990)],” a body of law that Congress determined to be “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”  Id. § 2000bb(a)(5).

Most of my posts here will, in one way or another, address the question raised by the first part of RFRA’s two-part test—namely, whether the plaintiffs’ complaints fairly allege that federal law “substantially burden[s] [their] exercise of religion.”

From the face of those complaints, and the plaintiffs’ briefs, it sure sounds as if the “Preventive Services” Rule issued by the Department of Health and Human Services (together with the Departments of Labor and Treasury) will, indeed, “substantially burden” the plaintiffs’ religious exercise:  Plaintiffs allege that that Rule (together with other federal statutes) will require them to violate their religious obligations.  As the Hobby Lobby complaint puts it:  “Plaintiffs will face an unconscionable choice: either violate the law, or violate their faith.”

But how, exactly, does federal law purportedly require the plaintiffs to violate an obligation of their faith?

Well, according to Hobby Lobby’s complaint, the religious beliefs of the Green family—who own and operate Hobby Lobby—“forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices.”  Hobby Lobby further alleges that he HHS “mandate”—allegedly requiring Hobby Lobby to include certain contraception coverage in the health insurance plan it makes available to its employees—“coerces the Green family to violate their deeply-held religious beliefs under threat of heavy fines, penalties, and lawsuits.”  (Hobby Lobby’s brief at the cert. stage clarifies that providing insurance coverage for four particular methods of birth control “that risk killing an embryo makes [the plaintiffs] complicit in the practice of abortion,” and that therefore “they cannot cover these four methods without violating their faith.”  I discuss those particular forms of birth control in my next post.)

Similarly, the Conestoga Wood complaint alleges that the owners of that company, the Hahns, “believe that it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, contraception with an abortifacient effect, and related education and counseling, as would be required by the Mandate, through their inclusion in health insurance coverage offered by Conestoga.”

As you can see, these claims appear to depend upon at least four predicate assumptions or allegations: 

(i) that federal law requires the companies in question to offer their employees access to a medical insurance plan;

(ii) that the HHS Rule requires such an insurance plan to provide for coverage of “abortifacients”;

(iii) that the companies’ provision of such insurance coverage would require the individual owners of the companies to “participat[e] in, provid[e] access to, pay[] for, train[] others to engage in, or otherwise support[] [the use of] abortion-causing drugs and devices”; and

(iv) that the owners’ religions forbid them from doing so, because such actions make them “complicit” in their employees’ eventual use of “abortifacients.”

Each of these predicates is open to question, and raises puzzles of its own.  I’ll address them in the course of my posts to follow.

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