Balkinization  

Monday, June 30, 2014

Hobby Lobby as Separation of Powers

Jason Mazzone

Although I have followed with interest the Hobby Lobby and Conestoga Wood cases, I have not previously written about them. I am not a religion specialist and much of the discussion about the cases (at this blog and elsewhere) has involved questions of religious freedom, religious accommodation, and religious establishment that seemed to me better left to experts. As a generalist in constitutional law, it seemed to me the cases were largely about separation of powers. Where, I wondered, did HHS actually get the power to require, as it had in its regulations implementing the Affordable Care Act, some employers but not others--indeed, some corporations but not others; some religious objectors but not others--to provide employees with morning-after pills?

Since I suspect that with today's ruling in favor of Hobby Lobby and Conestoga Wood under the Religious Freedom Restoration Act (RFRA) we'll quickly be focused again on religion, I want to note that much of Justice Alito's opinion has a separation-of-powers theme. Repeatedly, he casts the ruling as bringing a runaway agency to congressional heel. I recognize of course that not everyone will agree that deference to Congress warrants today's outcome. But rarely has the Supreme Court so thoroughly trounced an agency's interpretation of congressional directive. Some relevant portions of Justice Alito's opinion are below the jump--but it is worth reading the whole thing with an eye to congressional versus executive power.


"The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs." (2)

"Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests? An examination of RFRA’s text . . . reveals that Congress did no such thing." (17-18)

"We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. . . . No known understanding of the term “person” includes some but not all corporations. . . . [N]o conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations."(19-20)

"HHS argues that RFRA did no more than codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws. . . . When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so." (25)

"[B]oth HHS and the principal dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws. By contrast, HHS contends, statutes like Title VII, 42 U. S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. . . . If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations." (28)

"HHS has . . . provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection." (30)

"Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed." (37)

"HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law." (43)

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