On Monday, June 30, the Supreme Court of the United States handed down its decision in the case of Burwell v. Hobby Lobby. The Court held that "[a]s applied to closely held corporations, the [U.S. Department of Health and Human Services] regulations imposing the contraceptive mandate violate [the Religious Freedom Restoration Act]." Consequently, the pro-life Christian owners of Hobby Lobby Stores and Conestoga Wood Specialties—the Green and Hahn families, respectively—will not have to cover in their employee health-care plans drugs and medical devices that can cause abortion.
As a general rule, I do not comment on Supreme Court cases or public policy. Nevertheless, in my role as general superintendent of the Assemblies of God, I sometimes find it necessary to give my best advice to the Fellowship, and in this case, I think there are good reasons for supporting the court's ruling. Before explaining those reasons, let me describe the case's logic and significance.
Hobby Lobby's Logic and Significance
The Court's logic—expressed in the opinion written by Justice Samuel Alito—was straightforward. The Religious Freedom Restoration Act (RFRA) says, "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless doing so "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." The Dictionary Act (1 U.S. Code § 1) defines the word person to include "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals."
Hobby Lobby and Conestoga Wood Specialties are closely held corporations whose owners believe that the HHS contraceptive mandate substantially burdens their exercise of religion. Even assuming that the contraceptive mandate furthers a compelling governmental interest, HHS did not show that it was the least restrictive means of doing so. Therefore, the contraceptive mandate violated RFRA in the cases of Hobby Lobby and Conestoga Wood Specialties.
I should point out that the court decided this case on the basis of RFRA rather than the First Amendment, that is, on statutory rather than constitutional grounds. This is a vital distinction. In Employment Division v. Smith, a controversial 1990 case that still governs the court's jurisprudence on First Amendment Free Exercise Clause cases, the court ruled, "The constitutional guarantee of religious freedom does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the grounds that the law [prohibits] conduct that his religion prescribes."
In response to this decision, which was decried by religious-freedom advocates, a nearly unanimous Congress—a unanimous House and 97 out of 100 votes in the Senate—passed RFRA in 1993 in order to provide statutory relief to persons whose religious freedom could now be burdened because of the Court's decision in Smith. In all likelihood, Hobby Lobby and Conestoga Wood Specialties would have lost if their cases were decided solely on First Amendment grounds.
The significance of the court's decision should not be underestimated. For one thing, it was a pro-life victory. Had the court ruled the other way, the government would have had the power to force pro-life business owners to violate their consciences and cover in their employee health-care plans' drugs and medical devices that can cause abortion.
Indeed, as the court pointed out, "Under HHS's view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide." For another thing, the decision was a vindication of the idea that religious exercise cannot be limited to individuals, explicitly religious groups, or explicitly religious activities. Rather, a group of persons can exercise religion even in the context of commercial activity.
Considering Popular Objections
Unfortunately, the court's decision was controversial. I say unfortunately because religious freedom should unite Americans across the lines of religion and political affiliation rather than divide them. We personally might dislike this or that application of the principle of religious freedom, but the principle itself should be left untouched. It is worrisome to me that religious freedom has fallen prey to the pervasive partisanship that characterizes so much of contemporary politics.
In the aftermath of Hobby Lobby, some politicians are now proposing that RFRA be repealed or amended or that exceptions to it be carved out in various pieces of legislation. In my opinion, changing a principle because you don't like its application suggests that your support for the principle was partisan—that is, designed to give you a political advantage—rather than principled.
Nevertheless, the controversy must be engaged. So, in this section, I'll examine three popular objections to the Court's decision. In the next, I'll examine a line of argument made by Justice Ruth Bader Ginsburg in her dissent.
One popular objection—that corporations do not have rights—can be dispatched quickly. The Assemblies of God—a nonprofit corporation—has a First Amendment right to the "free exercise" of religion. This right applies to the corporation as such, not merely to its officers or employees. Similarly, our Fellowship shares with for-profit corporations a First Amendment right to "the freedom of speech" and "of the press"; a Fourth Amendment right against "unreasonable searches and seizures," i.e., those that take place without a warrant supported by "probable cause"; a Fifth Amendment right against "property" being taken "without due process of law"; and in eminent-domain cases, "without just compensation"; a Sixth Amendment and Seventh Amendment right to a jury trial in criminal and civil cases, respectively; and an Eighth Amendment protection against "excessive fines." In other words, corporations—both nonprofit and for-profit—do have at least some rights, and this is recognized by the Supreme Court.
Another popular objection—that the decision constitutes a "war on women"—is misleading. In two cases—Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972)—the Supreme Court ruled that both women and men have a constitutional right to purchase and use contraceptives, whether they are married or unmarried. Those rulings are unaffected by Burwell v. Hobby Lobby.
Moreover, neither Hobby Lobby nor Conestoga Wood Specialties had an objection to covering contraceptives per se. Indeed, their employee health-care plans covered 16 of the 20 forms of contraception approved for use by the Food and Drug Administration (FDA). They simply objected to covering the four forms that can cause abortion. Finally, not all women agree that employee health-care plans should pay for medical drugs and devices that can cause abortion, e.g., the women in the Green and Hahn families, among millions of others.
(By the way, the official position of the Assemblies of God, as adopted by the General Presbytery, is that contraception is permitted but abortion is prohibited. The General Council's employer health-care plans covers all FDA-approved forms of contraception except ones it considers abortifacients. In other words, both the beliefs and health-care plans of the Assemblies of God are similar to those of Hobby Lobby and Conestoga Wood Specialties.)
A final popular objection is that granting for-profit corporations free-exercise rights will lead to a parade of horrible outcomes in which religious employers refuse to cover blood transfusions, vaccinations or other medical procedures they deem inconsistent with their religious beliefs. The problem with this objection is twofold: (1) RFRA has been the law of the land for 21 years, and there has not been a parade of horribles with regard to religious individuals seeking protection from generally applicable laws. Why should we assume that there will be one now that some corporations can claim free-exercise rights? (2) RFRA employs a balancing test between compelling governmental interests and the free exercise of religion. If the government shows that requiring coverage of transfusions, vaccinations or other medical procedures is the least restrictive means of accomplishing a compelling interest, then the government will prevail. In other words, RFRA does not guarantee that religious persons will prevail when they claim that a generally applicable law burdens their free exercise of religion. Sometimes, they will lose.
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