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Hobby Lobby decision: What it really means

by TODD SLOAN/Guest Opinion
| July 10, 2014 9:00 PM

In the past week there have been amazing and hysterical ravings about the Hobby Lobby decision. On these pages we were treated to a cartoon of a big fish, "Corporations," about to bite down on a smaller fish, labeled "Individual Rights." Literary lights like Nancy Pelosi termed the decision "outrageous" because it permitted "corporations to choose which laws to obey." Hillary Clinton theorized "companies will claim religious beliefs and some will be sincere. And we're going to see this valuable service cut out from many many women." The artist and these political figures either did not read the opinion or relied on secondary sources, equally unenlightened, or were, unfortunately, prevaricating.

Amid all of the superheated rhetoric, which the opinion generated, I decided to read it, all 93 pages of it. Let's examine some of the basic tenants which the pundits have seemingly ignored. (1) This is not a First Amendment Free Exercise decision. It is based on The Religious Freedom Restoration Act of 1993 (RFRA) 42 USC Sections 2000bb-1(a), (b) and The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), two statutes enacted by the Clinton administration.

The complaining parties, Hobby Lobby and Conestoga Wood Specialties Corp.'s objections reached only four of 20 FDA approved contraceptive regimes. They asserted the right to not have to fund contraceptives which caused a fertilized egg to be destroyed. That could be in the eyes of some religions, an abortion. The proof paradigm under RFRA requires HHS (or the U.S.) to establish two factual predicates to have a regulation affirmed by the court: (1) that the regulation furthers a compelling governmental interest; and (2) that it is the least restrictive means to achieve that goal.

The facts underlying both the Hobby Lobby and Conestoga cases are not difficult. The families who own and operate these closely held corporations believe for religious reasons that abortifacients violate the doctrines of their faiths. They have no objections and, in fact fund, insurance providing their female employees, with access to the 16 types of contraceptives which do not produce an early term abortion. For Hobby Lobby to defy the HHS regulation/mandate, it could be fined up to $475 million per year, a substantial impairment.

The first issue which the Supreme Court addressed was whether a for-profit corporation could assert its right to protection under the RFRA. It is the issue upon which Justice Ginsberg pounced in her polemic dissent and one which the majority diffused. It also raises some of the Citizens United issues dealing with corporate rights. Or for want of a better term, "Personhood." The analysis starts with elegant simplicity at page 19 of the decision. There the Court refers to the Dictionary Act, 1 USC Sect. 1, which includes corporations in the definition a "person" for legislative purposes. Pressed on the issue, HHS conceded that a non-profit corporation could be a person and was not able to respond as to why the term included some but not all corporations. HHS sought to parry the argument that even if the plaintiff corporations were "persons," they were not persons who could "exercise religion." HHS provided no explanation as to why some persons could exercise religion and others could not.

So how is the distinction to be made? Referencing its decision in Braunfeld v. Brown, 366 U.S. 599 (1961) where the Court considered, among other things, whether Jewish Orthodox merchants could not be burdened by then existing Sunday closing laws. The Hobby Lobby court in viewing Braunfeld stated, "HHS would put the merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits available to their competitors of operating corporations." (Page 17) It also noted that corporations are composed of people; people here who have religious principles which could be foreclosed if the mandate was enforced.

The Court delved extensively into the issue, noting that sole proprietors could shelter under RFRA, for example on the very issue raised here. It made no sense to bar businesses, for-profit or nonprofit, from such protections. Hence a for-profit corporation is as much entitled to protection under the RFRA as anyone else. Accordingly Kosher delis in New York City cannot be required to close on Sunday or compelled to sell non-Kosher pork products.

This is, of course a definitional issue. Here the Hobby Lobby Court went out of its way to narrow its holding to impacting only on closely held corporations. It noted that publicly traded corporations, because of diverse shareholder beliefs could never adopt the business position that Hobby Lobby and Conestoga championed. Corporate law, the province of the states, would never permit such practices. Al Gore, as a member of the Board of Directors of Apple, certainly would not permit it to adopt the Hobby Lobby business practice.

Because of the severity of the fines to be imposed for noncompliance, it did not take much for the court to conclude that the first prong of the RFRA was satisfied and that the mandate substantially burdened the exercise of religion. Having reached that conclusion, the Court went on to analyze the second, whether HHS had used the least restrictive means. In essence, the Court found that HHS had failed to satisfy this requirement

"HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases." (P. 40)

So where does that leave us? We have always known that business with fifty or less employees are exempt from the Affordable Care Act of 2010. We also know that based on Hobby Lobby and Citizens United that corporations are "persons." Although Hobby Lobby is narrowly drawn, there appear to be places where it could be expanded even within its limited terms based on the RFRA. It is a very open question whether owners with other religious scruples may rely upon them to further challenge HHS mandates. Where this leads us with respect to medically accepted life saving therapies is an open question. Of course the dissent and pundits point to the Jehovah's Witness prohibition on blood transfusion. That would then, of course, set up contention between religious exercise and the right to life. Maybe there is a business out there with over 50 employees owned by a Jehovah Witness family. But that hypothetical problem was not before the court.

If there is one principle taken from all this, it is those who would make stentorian comments ought to engage their brains before putting their mouths in gear.

Todd Sloan is a Hayden resident.