Yesterday’s ruling from the US Supreme Court on the HHS mandate was a win for families and freedom against coercive force and fines. In his opinion for the Court, Justice Samuel Alito made a number of arguments that deserve to be highlighted. His arguments are especially important as we try to determine how the ruling should apply to groups with lawsuits still pending, such as the Little Sisters of the Poor, Wheaton College, and Mother Angelica’s Eternal Word Television Network (EWTN).
But first, here’s what the Court held.
For-Profit Corporations, Legal Persons, and Human Rights
The Court rejected the argument made by the Obama administration that the Religious Freedom Restoration Act (RFRA) does not apply to for-profit corporations of any kind, even those that are closely held family businesses. The Court reached this judgment by looking to the text and history of RFRA. It also consulted the Dictionary Act, which controls the legal meaning of the terms used.
Over the years, the Court has often vindicated the rights of non-profit corporations and of individuals involved in commerce. So what was it about the combination of the corporate form and profit-seeking that would somehow disqualify an entity from protections?
At issue was the legal concept of personhood. Yesterday, the court ruled that “No known understanding of the term ‘person’ includes some but not all corporations.” Indeed, “no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”
Nor is there any reason to think that a for-profit corporation may only seek profits: “modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else.” Alito points out that some corporations “take costly pollution-control and energy-conservation measures that go beyond what the law requires.” If for-profits can pursue these humanitarian ends, “there is no apparent reason why they may not further religious objectives as well.”
The Court also pointed out the absurd consequences of rejecting the “plain terms” of RFRA. Alito writes that “RFRA was designed to provide very broad protection for religious liberty.” But, he continues, the Obama Administration argues that religious citizens must “either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.”
Indeed, in the Administration’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.” This would force many conscientious family businesses out of the marketplace. RFRA, Alito notes, “was enacted to prevent such an outcome.”
As Justice Kennedy explains in his concurring opinion:
In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.
Congress acted to protect the ability of citizens to lead their lives in the economic sphere when it passed RFRA. Alito explains that “Congress provided protection for people like the Hahns and Greens [the owners of Conestoga Wood and Hobby Lobby, respectively] by employing a familiar legal fiction: It included corporations within RFRA’s definition of ‘persons.’ But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings.”
Legal corporate forms are treated as persons in the law to serve and protect the rights and interests of flesh-and-blood human beings. Because “a corporation is simply a form of organization used by human beings to achieve desired ends,” when rights “are extended to corporations, the purpose is to protect the rights of these people.” So it is “quite beside the point” that a for-profit business may not be able to pray or receive a sacrament because “protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.”
The Religious Freedom Restoration Act
So, it is clear that RFRA applies to corporate persons. But what is RFRA? Signed into law by President Clinton in 1993, RFRA had broad bipartisan support: it passed with a unanimous voice vote in the House and by a 97-3 vote in the Senate. As Kim Colby explained yesterday here at Public Discourse, “RFRA implements a sensible balancing test by which a religious claimant first must demonstrate that the government has substantially burdened a sincerely held religious belief. The government then must demonstrate a compelling interest that cannot be achieved by a less restrictive means.”
Yesterday, the Court made it clear that the HHS mandate substantially burdened a sincere religious belief in an unnecessarily restrictive manner. To determine this, the Court first looked to the beliefs of the Hahns and Greens. The Hahns are devout Mennonite Christians, and the Greens are devout Evangelical Christians. Both families believe that they are obligated to run their businesses in accordance with God’s law as they conscientiously understand it. Neither family objects to contraception per se, but both believe that life begins at conception and that it is wrong to kill—or facilitate the killing of—that life. Thus, both families objected to four of the twenty FDA-approved HHS-mandated contraceptives because they have the potential to act post-fertilization and thus can kill a human embryo.
The Court did not second-guess any of these beliefs, nor did the Court judge whether these beliefs are right or wrong, true or false. The Court merely determined that the beliefs were sincere. In fact, the Court refused to render judgment, as the Obama Administration and Justice Ginsburg seem to have done, on whether the Hahns and the Greens had the “right” beliefs. Justice Alito notes that “HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.” But religious liberty, after all, is about “the right to be wrong” even in the pursuit of religious truth.
The ethical analysis of cooperation with evil and complicity in killing is complex and difficult, but the government need not—and should not—act as grand inquisitor adjudicating ethical orthodoxy. As the Court explains, “For good reason, we have repeatedly refused to take such a step.” When moral theologians and philosophers are still debating where to draw the line on acceptable participation in evil, why should government set a national policy? Instead, the Court recognized that RFRA asks it to test not the veracity of beliefs, but the sincerity: the Court asked “whether the line drawn reflects ‘an honest conviction,’ and there is no dispute that it does.”
Substantially Burdening Sincere Religious Beliefs
Next, the Court turned to look at whether the family businesses were substantially burdened by the government. In order to operate in accordance with their religious beliefs, the families had two options under the mandate. They could offer health insurance that did not contain the four abortifacients and pay a fine of $100 per day per employee—$475 million per year for Hobby Lobby and $33 million per year for Conestoga. Or they could drop health insurance altogether, with Hobby Lobby paying $25 million and Conestoga paying $1.8 million a year in fines. Either way, the Court judged that these fines are unequivocally “substantial” burdens.
Arguments that the fines for dropping coverage would cost less than the expense of providing coverage in the first place did not dissuade the Court. It rightly recognized that being forced to drop health care could create a “competitive disadvantage in retaining and attracting skilled workers.” More importantly, dropping health insurance isn’t a legitimate option, as it “entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees.” Forcing them to drop coverage in order not to violate their beliefs about killing forces them to violate their beliefs about treating their employees well through good compensation packages.
Having determined that a sincere religious belief was substantially burdened, the Court moved on to RFRA’s other prongs. It did not need to determine whether the provision of cost-free contraception was in fact a compelling government interest (it simply “assumed” it for the purposes of the case) because it was clear that the mandated means were not the least restrictive possible. After all, as Alito notes, “The least-restrictive-means standard is exceptionally demanding.”
The Court highlights numerous alternative, less restrictive ways in which the government could ensure access to cost-free contraception, including direct government funding: “If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal.” Short of government funding, however, HHS provided a less restrictive means of ensuring such access when it created an accommodation for religious non-profits. So, even according to HHS, less restrictive means exist.
What about Non-Profits?
In pointing to the accommodation as evidence that less restrictive means exist, the Court emphasized that it was not adjudicating whether the accommodation violates RFRA for non-profits such as the Little Sisters of the Poor or EWTN (who, hours after the Supreme Court ruled, were granted emergency relief by the Eleventh Circuit Court), or even whether it would survive an RFRA challenge by for-profit corporations. Whether or not the accommodation provides an adequate protection of religious liberty has yet to be decided, but its existence demonstrates that there are less restrictive ways to enforce this mandate.
But when the accommodation has been examined, it hasn’t held up well. Lower federal courts have granted relief from the mandate for twenty-six non-profit organizations because the administration’s accommodation is inadequate. These groups are concerned that the accommodation makes them morally complicit with the provision of contraception because they must send a notification to their insurance issuer or administrator, who will then provide plan members with the objectionable drugs and devices. As legal scholars have pointed out, the accommodation is nothing less than a “permission slip” that authorizes and directs insurance companies or third-party administrators to do what the employer considers a gravely immoral act.
The Supreme Court itself recognized the serious potential threat of the accommodation to the religious freedom of non-profits when it granted an emergency injunction for the Little Sisters. And in a footnote in yesterday’s opinion, the Court notes that it granted the Little Sisters temporary relief from the accommodation so that they are “permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators.”
While yesterday’s ruling doesn’t address the accommodation, it does provide a helpful framework for thinking through the issue. It is clear that RFRA applies to non-profit orders of nuns and their television networks and to religious colleges, charities, and other non-profit organizations. And it is clear that the crippling fines they would face constitute a substantial burden. The questions, then, are whether a sincere belief is present and whether a less restrictive means is available. On the Court’s own understanding, it is not supposed to adjudicate the orthodoxy or veracity of the moral concerns with filing the form—only with whether the nuns or other employers sincerely believe it to be wrong. And, as noted above, government funding of the contraceptives would be one less restrictive means of achieving that end.
Mark Rienzi points to a critical passage in Justice Kennedy’s concurring opinion: “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.” Religious non-profits should be encouraged about a future Court ruling, for, as Rienzi explains, this “is precisely what the Government proposes to do to non-profits: It provides a full exemption to some religious employers (churches) while denying that same exemption to others (such as Little Sisters of the Poor).”
The take-away is that, in granting a full “exemption” to churches but only an “accommodation” to religious non-profits, HHS seems to have shown either that there are indeed other, less restrictive means available or that the government interest isn’t truly compelling. Indeed, Rienzi continues, yesterday’s ruling from the Eleventh Circuit is also good news:
A concurring opinion by Judge Pryor didn’t pull any punches: He called the Government’s central argument—that the “accommodation” doesn’t impose a substantial burden on the exercise of religion—“rubbish.” Thus non-profit religious organizations can take heart that today’s decision helps them, too.
And late last night the Supreme Court issued a temporary injunction blocking enforcement of the HHS mandate against Wheaton College until later this week when the Obama administration has a chance to respond to its ruling.
Understanding, Enforcing, and Respecting RFRA
Yesterday’s decision suggests that the Supreme Court understands what Congress set out to do when it passed RFRA. As Alito notes, the Court isn’t tasked with adjudicating the “wisdom of Congress’s judgment on this matter” but is required to “enforce RFRA as written.” This doesn’t mean that religious objectors will always win, as Alito points out in responding to Justice Ginsburg’s dissent. The Court has ruled that each case has to be decided on the merits specific to that case.
In the healthcare context, some people raise concerns about vaccinations and blood transfusions. Yesterday’s holding, as Alito notes, only applied to the contraceptive mandate: “Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” But we need not agree with the religious belief in question to recognize that our laws may unfairly burden it. Religious freedom is for all, regardless of the popularity of the belief. Congress, in passing RFRA, has said that if the belief can be accommodated, then it must be.
There is no reason to think that religious liberty is an unfair trump card or that religious exemptions never should be recognized. Our law demands a careful—and sometimes complicated—balancing of interests. That is the only way to protect liberty and the common good.
Ryan T. Anderson is the William E. Simon Fellow at The Heritage Foundation and the Editor of Public Discourse. He is co-author, with Sherif Girgis and Robert George, of the book What is Marriage? Man and Woman: A Defense and is a doctoral candidate in political science at the University of Notre Dame.