Balkinization: <i>Hobby Lobby</i> Part XI -- Governor Brewer’s Veto in Arizona . . . and <i>Hobby Lobby</i>

Hobby Lobby Part XI -- Governor Brewer’s Veto in Arizona . . . and Hobby Lobby

Marty Lederman

The week before last, Arizona Governor Jan Brewer tweeted a photo of herself vetoing SB 1062. She did so after an extraordinary lobbying campaign by the Arizona business community, many state and federal Republican Arizona legislators—including Senators John McCain and Jeff Flake--and countless Republican officials and leaders throughout the nation. They all urged her to veto the legislation, and she heeded their advice.

You might think from the public debates that SB 1062 was a bill that would have established the rights of businesses and others to discriminate against same-sex couples. But the bill did not so much as mention marriage, or same-sex couples, or even discrimination.

Instead, the primary effect of SB 1062 would have merely been to codify an understanding of Arizona’s religious liberty statute that Hobby Lobby, Conestoga Wood, and their many amici—including Senator McCain—are arguing for in the Supreme Court with respect to the cognate federal statute, the Religious Freedom Restoration Act (RFRA). In particular, SB 1062 would have amended the Arizona RFRA to expressly protect “any individual, association, partnership, corporation, church, religious assembly or institution or other business organization.”

In other words, SB 1062 would have specifically reflected the legislature’s intent that RFRA’s compelling interest test should be applied in the commercial sector, to allow businesses and their owners to be exempt from at least some generally applicable rules governing the workplace and the market. And that is precisely the reading of RFRA that Hobby Lobby, et al., are arguing for in the Supreme Court.

Observers such as Doug Laycock are absolutely right that, contrary to popular reports, the Arizona bill would not necessarily—and certainly not expressly—have “given business owners the right to refuse service to gay men, lesbians and other people on religious grounds.” The bill would have invited such litigation but, as Doug correctly notes, “nothing in the amendment would have said who wins” in such cases.

Indeed, Doug argues that the bill would not have had much of an effect on the outcome of cases: He argues that courts would typically deny exemptions for businesses—especially large businesses—in such cases.

If past were prologue, this argument would be convincing. For, as I emphasized in a recent post on SCOTUSblog, when it comes to regulation of commercial activities, the Supreme Court—and virtually every other court and legislature, for that matter—has consistently construed the Free Exercise Clause and religious accommodation statutes not to require religious exemptions from generally applicable regulations.

The Supreme Court, in particular, has rejected such claims in at least nine cases, from Prince v. Massachusetts in 1944 to Jimmy Swaggart Ministries v. Board of Equalization of California in 1990, involving an array of legislation ranging from child protection laws (Prince), to anti-discrimination laws (Piggie Park, Bob Jones), to wage and hour laws (Tony & Susan Alamo Foundation), to Sunday closing laws (Braunfeld and related cases), to tax requirements (Lee, Covenant Community Church v. Lowe (475 U.S. 1078 (1986) (dismissing appeal for want of substantial federal question), Hernandez, Jimmy Swaggart Ministries).

It is true that in all of these cases the commercial actors were at least afforded their day in court; the cases therefore call into question the government’s “threshold” argument in Hobby Lobby that certain commercial actors are categorically excluded from coverage of the Free Exercise Clause and RFRA. (I've previously discussed these questions here and here.)

But, much more significantly, in all of these cases, the Court has refused to grant an exemption. Indeed, it has never even been a close call: By my count, with the exception of the Sunday closing cases (in which the real problem was a hard-to-justify legislative preference for Christianity), in all of these cases combined there was only a single vote for a constitutionally compelled religious exemption (in Prince) . . . and the basis for that singular vote was Justice Murphy’s conclusion that the case did not involve commercial activity. (Murphy was apparently of the view that the child at issue in the case was distributing pamphlets rather than offering them for sale.)

This long line of consistent denials of exemptions to actors in the commercial sphere reflects the view of Justice Jackson in the first such case, Prince, in which he wrote in his concurrence that “money-raising activities on a public scale are, I think, Caesar's affairs, and may be regulated by the state so long as it does not discriminate against one because he is doing them for a religious purpose and the regulation is not arbitrary and capricious, in violation of other provisions of the Constitution.”

A unanimous Court put the point this way in Lee, in 1982: “When 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,” at least where “[g]ranting an exemption . . . to an employer operates to impose the employer’s religious faith on the employees.”

Whether or not this was a stand-alone “holding” in Lee, there is no doubt that the statement did—and continues to—fairly reflect the Court’s unbroken line of decisions over many decades. (The singular exception to the rule is Hosanna-Tabor, which, unlike Hobby Lobby, involved the right of nonprofit, specifically religious organizations to determine the “ministers” who speak on their behalf.)

And the Lee statement further points to the principal reason for this uniform treatment of religious exemption claims in the commercial sphere—namely, that in such cases it is virtually always the case that conferral of an exemption would require third parties (customers, employees, competitors) to bear significant burdens in the service of another’s religion, something the Court has understandably been loath to sanction. As I wrote on SCOTUSblog,

Contrary to the views of some, I think it overstates matters to say that such a significant third-party burden invariably renders a permissive religious accommodation unconstitutional. The Court’s jurisprudence in the area of permissive accommodations is not so unequivocal. But this much is clear: Such a significant third-party burden at a minimum raises profound constitutional concerns. For that reason, as Chip Lupu and Bob Tuttle explain, the Court has regularly construed permissive accommodation statutes – using the avoidance canon either expressly or implicitly – to recognize a compelling government interest in avoiding the imposition of significant third-party harms.

(In light of this unbroken history of denying religious exemptions to commercial enterprises that would result in significant third-party harms, the plaintiffs in Hobby Lobby and Conestoga Wood endeavor to minimize the extent or nature of those harms in these cases. I try to explain why those arguments are unavailing in my SCOTUSblog post.)

And that is why Hobby Lobby is—and why Arizona SB 1062 would have been—so striking and so important. However modest its language might have been, there is no doubt that SB 1062 was designed—and widely understood, including by Governor Brewer—to reflect a legislative view that commercial actors should be afforded religious exemptions much more often than they have been in the past (i.e., never), including when it comes to antidiscrimination norms.

Likewise, in Hobby Lobby, the plaintiffs and their amici (including Senator McCain) are urging the Court not only to allow commercial for-profit enterprises to raise RFRA claims, but also to grant the requested exemptions—that is to say, they are urging the Court to make a sharp break from its unbroken doctrine. It is therefore not surprising that the government, in its just-filed reply brief, argues that "RFRA should not be read to attribute to Congress an intent to accomplish sub silentio the revolution in free-exercise law that respondents seek."

Some of Hobby Lobby's amici argue that the case (and the parallel recent proposals to amend state law) does not threaten such a sea-change with respect to commercial actors' claims for religious exemptions that would significantly harm third parties. Doug Laycock, for example, has recently blogged that SB 1062 would not have presented much of a threat to antidiscrimination and other commercial laws because “[a]s a business gets bigger and more impersonal, courts would have become more skeptical about claims of substantial burden on the owner’s exercise of religion, and more open to the government’s claim of compelling interest.”

But in Hobby Lobby—a case involving a corporation with a chain of more than 500 arts-and-crafts stores and more than 13,000 full-time employees—the plaintiffs and their amici are arguing that the Court should abandon both of these traditional practices in assessing claims for religious exemptions, even in the commercial sphere. For example, they contend that the courts are virtually precluded as a matter of constitutional law from interrogating claims of substantial burden, even where (as here) the plaintiffs rely upon mere conclusory characterizations and have not alleged facts that would demonstrate that each of the lawful options available to them would require or coerce them to violate a religious injunction. Moreover, those same parties and amici are urging the Court to be deeply skeptical of the government’s compelling interest in reducing unintended pregnancies, primarily because of alleged exceptions to the law. As I’ve argued in previous posts, the law here contains few if any actual exceptions that undermine the regulatory scheme and the government’s compelling interest in ensuring affordable access to various forms of preventive services, including not only contraception but also immunizations and colon-cancer screening. More fundamentally, however, many important laws contain significant exceptions (Title VII, for example, does not prohibit race and sex discrimination for employers with fewer than 15 employees); and yet the Court has not typically considered that to be a reason for requiring religious exemptions, as well. See, e.g., Tony & Susan Alamo Foundation, 471 U.S. at 300 n.21 (although Fair Labor Standards Act contains many exceptions to the definition of “employee” (see 29 U.S.C. 203(e)) and to the requirement of minimum wages (see 29 U.S.C. 213(a)), the Court deemed them to be “not relevant here,” and denied the requested religious exemption); Hernandez, 490 U.S. at 700 (“The fact that Congress has already crafted some deductions and exemptions in the Code . . . is of no consequence . . . .”); see also the examples in the government's reply brief at 19-22.

The Court’s decision in Hobby Lobby is likely to have a profound effect upon how other courts treat state and federal RFRA claims in the commercial sector going forward. If the Court were to hold that RFRA requires an exemption in these cases—and were to hold, in particular, in the case brought by a very large for-profit employer, that the law substantially burdens plaintiffs’ religious exercise and that the government lacks a compelling interest in denying religious exemptions—that would be a groundbreaking departure from the judiciary’s (and Congress’s) historical practice, one that could pave the way for claims for “myriad exceptions flowing from a wide variety of religious beliefs” (Lee) by commercial enterprises with respect to many other statutes, including nondiscrimination requirements, zoning regulations, taxes, and so on.

The Republican establishment strongly opposed SB 1062 because it would have invited courts to honor claims of entitlement to religious exemptions from anti-discrimination norms, and other generally applicable regulations, in the commercial setting. Yet that is precisely what a ruling for Hobby Lobby might presage, across the nation, Governor Brewer’s veto notwithstanding.

Compendium of posts on Hobby Lobby and related cases

Posted 7:39 PM by Marty Lederman [link]