Just a few notes I have made as I have worked through the opinion tonight. In short, I think this is a big swing-and-miss for the Court. I am with Ginsburg’s dissent. Here’s why:
1. On Religious Liberty and Corporations. The Court disagrees with the Third Circuit’s observation that corporations don’t exercise religion because they don’t “pray, worship, observe sacraments, or take other religiously motivated actions…” 573 U.S. ___, slip op. at 18 (quoting 724 F.3d at 385). It dismisses the observation by asserting that corporations do nothing apart from the people that run them. But that only begs the question – what, exactly, is it that a corporation can do that is itself religious? It can exercise rights of speech and economic rights, but in what sense can we say that a corporation can “exercise” religion at all? This is the troubling issue at the heart of the opinion.
2. On the Sincerity of Hobby Lobby. “…the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that…may result in the destruction of an embryo.” (my emphasis) Slip op. at 32. I was disappointed that the government conceded the facts on this point so readily. It is far from clear that at least two of the birth control methods at issue were abortifacients. And it is hard to be “sincere” about a fact which one knows cannot be proven as true.
But my bigger problem here is that there is no effort to distinguish the sincerity of (a) the belief that life begins at conception (which is well and good enough) and the sincerity of (b) the objection “to providing health insurance that covers” possibly abortifacient birth control. Just because you sincerely believe in (a) doesn’t mean you pass the sincerity test for (b). Making dangerous implements available to people for responsible use (i.e., guns, cars, other drugs, etc.) doesn’t create a moral hazard just because they might be abused or misused for other purposes. And the fact that Hobby Lobby has admitted before the Court that it extended coverage for some of these methods of birth control before the ACA took effect would seemingly make it impossible for Hobby Lobby to establish that it is in the least bit sincere about (b) as a deeply held religious belief.
The problem, then, is that Hobby Lobby – to the extent it can hold a religious conviction at all – doesn’t and can’t possibly believe that that it is immoral to pay for insurance that might or might not be used to purchase a method of contraception that probably isn’t abortifacient, and which in turn might or might not cause a very early-term pregnancy to abort. Heck, they probably take bigger risks that someone will get killed when they send an employee to run an errand to another store across town.
I wish the government had argued what everyone already knows is the truth: this is a politically motivated move to discredit the ACA as a whole by asserting a trumped-up religious belief that buying insurance for an employee is somehow immoral.
(To be clear, my problem is with whether the facts support the sincerity of the stated belief, not whether it is objectively reasonable – the issue which the Court focuses on pp. 36-38.)
3. On Whether the ACA is the Least Restrictive Means to Accomplish the End. Here, Angels begin to perform brilliant versions of swan lake on the heads of pins. The Government, the Court says, can “assume the cost of providing the four contraceptives at issue…” Slip op. at 41. It is hard for me to imagine how the alternative method suggested by the Court is in any way less morally reprehensible or attenuated than the first scenario.
4. On the “Limited” Nature of the Holding. “Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests…” Slip op. at 46. Yeah. And good luck when that one comes along in a few months, guys.* You are going to find it is a nightmare trying to sort out where the ACA does and does not have a compelling interest. Ginsburg will get to this one later.
5. Ginsburg Dissent: “…commercial enterprises…can [now] opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Slip op. at 1. Exactly. Except she forgot to mention that the standard for sincerity is now ridiculously easy to satisfy (see # 2 above).
6. Ginsburg: “…the amendment in no way suggests that Congress meant to expand the class of entities qualified to mount religious accommodation claims…” Slip op. at 10.
7. Ginsburg: “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations.” Slip op. at 16.
8. Interesting from Ginsburg: “RFRA…distinguishes between ‘factual allegations that…beliefs are sincere’…and the ‘legal conclusion…that religious exercise substantially burdened.’” Slip op. at 22. In other words, the fact that you are sincere about your belief does not itself yield the legal result that are sufficiently burdened to justify applying the Act.
9. Ginsburg: “To recapitulate, the mandated…coverage enables women to avoid health problems unintended pregnancies may visit on them and their children. [citation omitted]. The coerage helps safeguard the health of women for whom pregnancy may be hazardous… [citation omitted]. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain.” Slip op. at 24.
10. And this, from Ginsburg: “…approving some religious claims while deeming others unworthy of accommodation [could violate] the “very risk the Establishment Clause was designed to preclude.” Slip op. at 34. In other words, once the Court decides to start calling balls and strikes as to which mandates are applicable and which aren’t, they risk running afoul of the First Amendment. (And it will be interesting to see what happens when Muslims begin to make similar claims).
*Not being sexist. Tellingly, none of the women on the Court went with this one.