Balkinization  

Thursday, March 27, 2014

Do The Rights of Employees Count?: The Supreme Court Hears Oral Argument in Hobby Lobby

David Gans


Hobby Lobby is shaping up to be the most important free exercise of religion case the Supreme Court has heard in a very long time.    It’s also emerging as a key test for Justice Anthony Kennedy and his vision of individual liberty.  Will Justice Kennedy recognize that Hobby Lobby’s employees, who seek to protect their health and control their reproductive lives, are entitled to enjoy federal guarantees that safeguard women’s liberty and personal dignity by ensuring access to the full range of contraceptives?

The fundamental question at the heart of the case is whether the Court will extend free exercise rights to secular businesses and allow them to extinguish the rights of their employees.  That would be a radical break from both the Constitution’s text and history and everything the Court has said in the past about the meaning of the constitutional guarantee of the free exercise of religion. 

Never before in our Nation’s history has a commercial enterprise been granted a religious exemption from a neutral law when that exemption would allow business owners to impose their religious beliefs on their employees.  And, indeed, this is hardly surprising, as the Court has rarely granted religious exemptions at all.   Nevertheless, in a bitterly divided oral argument in Hobby Lobby, a number of the Court’s conservative Justices seemed inclined to read the Religious Freedom Restoration Act (RFRA) to revolutionize free exercise law and create religious exemptions for secular businesses never recognized by any other court in our Nation’s history before this case.  Justice Kennedy – alone among the Court’s conservative Justices – asked hard questions to both sides.   As virtually all Court watchers seemed to agree, Justice Kennedy’s vote appeared to be the one that will determine the outcome.  

The oral argument in Hobby Lobby was billed as a critical test of whether the Court’s conservative wing would double down on the decision in Citizens United and extend religious free exercise rights to secular for-profit corporations – businesses that cannot pray and lack a religious conscience in any meaningful sense of those words.  Surprisingly, that debate never materialized.   While Justice Sonia Sotomayor made the point that “we’ve never considered a for-profit corporation as exercising religion,” and Justice Ruth Bader Ginsburg stressed that the Court’s Free Exercise Clause jurisprudence protected only individuals and religious bodies, these arguments were quickly brushed aside. 

It is disturbing to think that the Court’s conservative majority would be willing to extend to secular, for-profit corporations the basic rights of conscience and human dignity – rights they have never possessed in more than two centuries – with hardly any serious debate at all.  Instead, the critical question during oral argument seemed to be whether the rights of employees count at all when a secular business seeks a religious exemption from a neutral, generally-applicable law protecting the rights of employees.  Solicitor General Don Verrilli put the rights of Hobby Lobby’s employees front and center, while Hobby Lobby’s lawyer, conservative superstar Paul Clement, tried to sweep them under the rug.  

The Court’s pre-RFRA case law interpreting the Free Exercise Clause recognized that the rights of employees do matter.  That was the lesson of United State v. Lee – a case discussed at length during the Hobby Lobby argument – in which the Supreme Court unanimously rejected an Amish business owner’s claim that he was entitled to a religious exemption from having to make Social Security payments on behalf of his employees.  The Court in that case could have said that, to accommodate Mr. Lee’s religious beliefs, the government should pay for Social Security benefits for Lee’s workers or should create a new exemption to protect his ability to run a business consistent with his religious beliefs.  But it did not.  Rather, the Court held that Lee was not entitled to a religious exemption that would “impose the employer’s religious faith on the employees.”  That’s exactly what Hobby Lobby is seeking to do here.

Led by Chief Justice John Roberts, a number of the Court’s conservatives suggested during oral argument that RFRA had changed the fundamental principles that govern religious exemptions.  RFRA was enacted in 1993 to restore the Court’s free exercise case law as it existed before the Court’s decision in Employment Division v. Smith, a body of case law that mainly rejected claims for religious exemptions from neutral laws.  But Chief Justice Roberts seemed to read RFRA as having created a broad right to religious exemptions.   When Solicitor General Verrilli began his argument by quoting Justice Jackson’s 1944 statement that limitations on religious freedom kick in when they “collide with the liberty of others,” Chief Justice Roberts snapped back, “[t]hat’s a statement that’s inconsistent with RFRA, isn’t it?”  Justice Scalia, too, appeared to take the view that the rights of employees were entitled to no weight, emphasizing that the text of RFRA did not require a court to consider the rights of third parties.  He even fought the language of the Court’s opinion in Lee, suggesting the rights of employees did not figure in the analysis.  Only Justice Kennedy appeared to recognize that the rights of employees do matter. 

As the oral argument demonstrated, the Supreme Court’s ruling in Hobby Lobby could have dramatic and harmful ramifications that go way beyond the specific question before the Court in this case.  If Hobby Lobby prevails, secular businesses could try to avoid paying for medical treatments like vaccinations and blood transfusions, and to seek exemptions from important legal protections given to employees for family leave and against discrimination.  Justices Sotomayor, Ginsburg, and Kagan all pressed Paul Clement to explain how courts should handle such claims.  Disturbingly, he offered no limiting principle that might confine the reach of a ruling in favor of Hobby Lobby.  Conservative Justices, who had so worried about government mandates to eat broccoli and other far-fetched hypotheticals in the first challenge to the Affordable Care Act, seemed uninterested in testing the limits of the argument that Clement was making.    

Hobby Lobby has been billed as a clash between the religious beliefs of the company’s owners and the power of the government, but that is a too narrow a frame.  As the Justices reflect on the oral argument, they should recognize that the rights of Hobby Lobby’s thousands of employees – who have deeply held beliefs and convictions of their own – are at stake here, too.   The big question at the heart of the case is whether Hobby Lobby’s owners will be entitled to impose their religious beliefs on Hobby Lobby’s employees and deny them federal rights critical to women’s health and reproductive freedom.  A ruling that would give business owners the power to extinguish their employees’ rights would be a grave setback for hard-working Americans.  And as Justice Kagan recognized, it would also open the floodgates to numerous other claims challenging other important federal laws and threatening other employee protections.  Employees should not have to check their personal liberty and human dignity at the workplace door. 

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, the author of Can Corporations Pray?, and a co-author of CAC's brief in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.  This post is cross-posted at Text and History.  


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