Sunday, February 16, 2014

Hobby Lobby Part VI: The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers

Marty Lederman

This past Monday, the plaintiffs in Hobby Lobby filed their brief in the Supreme Court, and the government filed its bottom-side brief in Conestoga Wood.  (The briefing will be complete with the filing of Conestoga Wood's reply brief and the government's reply brief in Hobby Lobby, both of which are due on Wednesday, March 12.  Oral argument is Tuesday, March 25.)

In future posts, I'll discuss what these new filings (and some amicus briefs) have to say about the "substantial burden" and "compelling interest" questions under RFRA.  In this post, however, I simply want to highlight one important common ground between the government and the plaintiffs, as well as one fundamental difference.

The common ground is the parties' agreement that individuals can and do exercise religion in all aspects of their lives, including when they are engaged in commercial activities.  As the Solicitor General puts it:  "[T]he government’s argument in no sense depends on the proposition that people of faith must check their religious convictions at the door when they enter the commercial arena. . . .  The government does not question the importance of religious exercise to the Hahns [the owners/directors of Conestoga Wood] or to the millions of other believers in this Nation.  Nor does the government fail to appreciate that faith guides adherents throughout their day, including when they carry out responsibilities as corporate managers and directors."  

Why, then, does the government argue that the Court should reject the Hahns' (and Conestoga's) RFRA claims at the outset, without even applying the RFRA standards?  The answer to that question highlights a fairly fundamental divide reflected in the two briefs filed Monday. 

On the one hand, Hobby Lobby presses a simple point of logic, one that I flagged in my previous post:  The language of RFRA itself does not exclude for-profit corporations.  Therefore, if, as the government concedes, a RFRA claim for an exemption to a generally applicable law may be brought by a nonprofit corporation, and such a claim may also be brought by a for-profit individual employer (as were the free exercise claims in Braunfeld and Lee), why couldn't such a claim likewise be brought by an incorporated for-profit employer--or, at a minimum, by the owners/directors of a closely held for-profit corporate employer who allege that a regulation of the employer burdens their own exercise of religion?

The government devotes a couple of pages of its Conestoga Wood brief (see pp. 29-31) describing "practical problems" that would arise if the Court were to recognize RFRA claims by for-profit corporations, in particular.  But otherwise, the government does not expend a great deal of energy defending special rules for corporations, as such.  

Instead, the implicit theme of the government's threshold argument is that Congress could not have intended to require religious exemptions for for-profit employers generally.  This argument is grounded in history, and in a pronouncement of the Supreme Court in a 1982 free exercise case. 

The government notes that the plaintiffs and their many amici fail to cite a single case, other than those in the current contraception-coverage litigation, in which a court has ever held that either the Free Exercise Clause or RFRA entitled a for-profit employer to an exemption from a generally applicable law based upon a burden on the religious exercise of the employer or its owners, managers, or directors.  By contrast, in each such case that the Supreme Court has decided, the for-profit owners have overwhelmingly lost.  In addition to Braunfeld and Lee, see, for example, Newman v. Piggie Park Enterprises, Inc. (1968), in which Maurice Bessinger, the president, majority stockholder and general manager of a corporation, had argued that federal law requiring his restaurants to serve black customers would violate his free exercise rights because he “believe[d] as a matter of religious faith" that "any contribution" to "racial intermixing" "contravenes the will of God," a belief he derived from his reading of the Old Testament  Pet. App. 21a (Second Amended Answer, Sixth Defense), 126a (testimony of L. Maurice Bessinger).  In a single terse sentence, the Supreme Court unanimously held that this defense was "so patently frivolous" that it would "manifestly inequitable" not to reward attorneys' fees to the parties challenging the discrimination.  [UPDATE:  Bessinger died a few days after I published this post, an unrepentant racist to the end, whose restaurants proudly displayed confederate flags until just a few months ago.]

(Moreover, even apart from RFRA and the Free Exercise Clause, legislatures have very rarely, if ever, extended specifically religious exemptions to for-profit entities.  Occasionally for-profit institutions are included in statutory protections of conscience not limited to religion, such as in the 1973 Church Amendment, 42 U.S.C. 300-7(b)(2)(A) (providing that no public official is authorized to require an entity receiving a federal grant, contract, or loan to make its facilities available for the performance of any sterilization procedure or abortion if the entity prohibits that procedure "on the basis of religious beliefs or moral convictions")Religion-specific statutory exemptions for for-profit entities are far less common, however.)  
In particular, and as relevant to these cases, the government stresses that "[t]his Court has never permitted a for-profit employer (corporate or individual) to obtain a religious accommodation that comes at the expense of its employees" (emphasis added).  

The government's argument is, in effect, that the Congress that enacted RFRA could not have intended to create such a "sharp departure" from that unbroken historical record.  Indeed, the government argues that Congress should be assumed to have adopted the "rule" the Court announced in United States v. Lee that “[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,” at least where "[g]ranting an exemption . . . to an employer operates to impose the employer's religious faith on the employees."  

Of course, the fact that no court has ever afforded a for-profit employer a religious exemption at the expense of its employees does not necessarily mean that there could never be such a case, or that Congress intended to foreclose such cases.  And even if the government were correct that such for-profit employer RFRA claims will or should inevitably fail on the merits, that would not necessarily mean that the Court should decline even to apply the RFRA test in the first instance.  After all, in the two leading Supreme Court cases involving for-profit businesses, Lee and Braunfeld, the Court considered the burdens on religious exercise and the government's interests before rejecting the requested exemptions.  (The Court announced its more categorical "rule" in Part III of Lee (quoted above) as though it were an independent holding . . . but only after it had applied the then-governing free exercise standards.)

Nevertheless, the basic message of the government's brief is clear--namely, that to grant a religious exemption here, to a for-profit employer whose employees would bear the burden of accommodating the owners' religious commitments, would be a groundbreaking departure from the judiciary's (and Congress's) historical practice, one that could well pave the way for religious exemption claims by for-profit employers with respect to many of the myriad other statutes governing commercial enterprises, including nondiscrimination requirements, zoning regulations, taxes, and the like.

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