Monday, June 30, 2014

Justice Ginsburg Dissent: Burwell v. Hobby Lobby

The Supreme Court (U.S.) has ruled on the Hobby Lobby vs. contraception case, in favor of Hobby Lobby, relying heavily on the (previously, partially struck-down in Boerne vs. Flores, 1997) Religious Freedom Restoration Act (1993). Below are excerpts from Justice Ginsburg's dissent.

Hobby Lobby Ginsburg Dissent

(p. 14) Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious ex¬emption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opin¬ion concurring in part and dissenting in part). …

(p. 16) Indeed, until today, religious exemptions had never been extended to any entity operat¬ing in “the commercial, profit-making world.” Amos, 483 U. S., at 337.16

(16-17) The reason why is hardly obscure. Religious organiza¬tions exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight.

(18-19) Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiasti¬cal and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458(1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a commu¬nity of believers].”

(19) By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obliga¬tions. One might ask why the separation should hold only when it serves the interest of those who control the corpo¬ration.

(19-20) The Court’s determination that RFRA extends to for¬profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.19 Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.

(23) Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Cones- toga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physi¬cian—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employ¬er’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “sub¬stantia[l],” had in mind a linkage thus interrupted by independent decision makers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the wo- man’s autonomous choice, informed by the physician she consults.

(27) The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on non¬ beneficiaries.” Ante, at 42, n. 37 (quoting Cutter v. Wilkinson, 544 U. S. 709, 720 (2005); emphasis added). No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contra¬ceptive coverage requirement was designed to protect. Cf. supra, at 7–8; Prince v. Massachusetts, 321 U. S. 158, 177 (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”).

(31-32) But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own con¬duct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” Id., at 261. The statutory scheme of employer-based comprehensive health coverage in¬volved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Ibid.29 No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contra¬ceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so.

(33-34) [H]ow does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37. Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?31 According to counsel for Hobby Lobby, “each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision.

(34-35) There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative mer¬its of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approv¬ing some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear, has ventured into a minefield, cf. Spencer v. World Vision, Inc., 633 F. 3d 723, 730 (CA9 2010) (O’Scannla in, J., con¬curring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organiza¬tions formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged. . . substantially in the exchange of goods or services for money beyond nominal amounts.” See id., at 748 (Klein¬feld, J., concurring).

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