Some Thoughts on Hobby Lobby

Published July 1, 2014

National Review Online

The general sense about the Hobby Lobby decision handed down yesterday, very much suggested by the majority opinion itself, is that the ruling is highly significant for the particular matter at hand (the fate of the HHS mandate) but of limited significance for larger and broader questions beyond. It seems to me, however, that roughly the opposite may be the case.

In fact, the majority decision breaks some important ground on the general question of the corporate form in our civil society and its standing as a medium for the practice of our rights. But it leaves rather open the fate of the HHS mandate, by raising (without answering, as it was not at issue in this case) the question of whether the “accommodation” the administration has pursued regarding religious non-profits may be adequate both in their case and in that of for-profit corporations.

What follow are some reflections on the decision, and some guesses about what’s to come.

The element of the Court’s decision that most perturbed many liberals—the suggestion that corporations could effectively be bearers of rights—was actually the least controversial question among the justices themselves. Only two of the nine justices, Ginsburg and Sotomayor, argued that for-profit corporations could not be considered legal persons capable of exercising religion for purposes of the Religious Freedom Restoration Act. The other two liberal justices, Breyer and Kagan, declined to join that part of the dissent written by Justice Ginsburg (though they articulated no view of their own on the question), and the remaining five justices affirmed the view that rights could indeed be mediated, and so in effect put into practice, through and by for-profit corporations.

In one sense, this is a rather obvious point. As Justice Alito argued forcefully in his majority opinion, there is no reason why people should be expected to give up their basic rights when they incorporate a business. And Justice Ginsburg’s attempt to distinguish between profit-seeking and non-profit corporations on this front, made necessary by the fact that the administration did recognize the religious-liberty claims of some corporations and not others in this case, was the very model of a muddle. (It wasn’t as disturbing as her shockingly thin idea of what constitutes religious practice, though, and of what religious institutions are for.)

But in another sense, the standing of institutions, as opposed to individuals, as bearers of rights in our civil society is a complex and much-contested question, and a very important one. This is particularly so with regard to the exercise of religion, where we are the inheritors of a long tradition—the English common-law tradition of religious toleration—that has a very mixed record when it comes to protecting institutions rather than individuals.

I’ve taken up this question a couple of times around here in recent years, but to put matters very (very) simply, that tradition was born of efforts to find a way to provide protection for Jews and protestant dissenters in a nation with an established church but specifically not to provide much protection for Catholics. It did this in large part by distinguishing between individuals and institutions. Catholicism is an exceptionally institutional religion, with massive charitable and educational arms that are Catholic but are not houses of worship and that not only employ but also serve non-Catholics. Such arms are much more rare in other religious traditions, and used to be even more so. This distinction therefore in effect once allowed for broad toleration of just about all religious minorities in Britain except Catholics. It was supported by a line of reasoning evident over centuries, and given expression even in John Locke’s great Letter Concerning Toleration, which is one of the foundational documents of the intellectual tradition of liberal toleration.

The American offshoot of this tradition of toleration has tended to think a little differently about this question, above all because we have not had an established church in the United States. We have tended to take the absence of an Anglican monopoly on legitimate religiously-rooted social institutions to mean not that there could be no such institutions at all but rather that different communities of faith could build out different institutional forms and stake out for themselves a variety of roles in civil society and the private sphere. This has meant seeing some groups of people working together, and not just individuals alone, as protected by the various forms of the right of conscience and accepting as legitimate the idea that groups of people, as well as individuals, should whenever possible be protected from forms of coercion or restraint that violate their religious beliefs. And the extension of this attitude to corporations owned and run by people with religious convictions and in the service of those convictions has been perfectly natural.

The Obama administration has been pushing up against this American form of the tradition of religious toleration (which, being Americans, we tend to call “religious liberty”) in an effort to establish a public monopoly on the aims of social action. American progressivism has always wanted to clear out the space between the individual and the state and to confer rights only on individuals, rather than encouraging people to form complex layers of interacting institutions with diverse views of the good that each pursues with vigor and conviction. The HHS mandate, like so much of the administration’s domestic agenda, is intended to turn the institutions in that space, including private corporations, into arms of the government, carrying out the agenda of those in power.

The case the Court decided yesterday began when the people behind a few of those institutions resisted, and asserted their right to live out their religious convictions not only individually but also through the institutions they form. It therefore raised a question that runs very deep in our political tradition, and the answer to which has not always been obvious. The Court’s affirmation of the rights of people who organize to act as corporations is therefore important, as it reinforces the traditional American approach to this contested question and pushes back against the administration’s aggressive assertion of authority over the private sphere. (It is important, by the way, to recall how aggressive that approach really is: The Obamacare statute did not contain a mandate requiring employers to offer contraceptive and abortive coverage, and almost certainly wouldn’t have passed either house of Congress if it had. The administration picked this fight by choice, that’s why its approach has to be subject to the Religious Freedom Restoration Act to begin with.)

And yet, even as it pressed that general point, the Court’s majority opinion did not resolve the fate of the HHS mandate. Under RFRA, the government can only impose a substantial burden on religious exercise if it does so in the service of a compelling government interest and by the least restrictive means possible. So the questions the Court had to answer, once it established that for-profit corporations can be protected as bearers of rights, was whether the mandate imposes such a substantial burden, if so whether it does so in the service of a compelling government interest, and if so whether it does that in the least restrictive way possible.

The majority argues that the mandate very clearly imposes a substantial burden, writing:

The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million  per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.

The majority justices then assume for the sake of argument, without really taking up the question in particular, that the mandate advances a compelling government interest. “We find it unnecessary to adjudicate this issue,” the majority writes. “We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling.” They find it unnecessary because they believe that the mandate fails the second test required by RFRA—that it does not constitute the least restrictive possible means of achieving its goal.

Their strongest piece of evidence in this regard is the fact that the administration offered religious non-profit corporations an “accommodation” that constitutes a less restrictive means of meeting the same goal. That accommodation involves allowing the employer to avoid explicitly paying for contraceptive and abortive coverage and instead having that employer notify its insurer of a religious objection and authorizing the insurer to provide the contested coverage without specifically charging the employer for it.

If religious people thought about their religious obligations the way the administration’s lawyers think about the law, this might work. But given that the employer’s notification functions as an authorization to provide the disputed coverage to employees, and that money is fungible, this accommodation could not really satisfy the concerns of most employers who object to covering abortion or contraception. And indeed several of the religious non-profits that have been offered this accommodation are now suing the administration for relief from its requirements.

But even if it still constitutes a substantial burden on the exercise of religion, Justice Alito and his colleagues note, this accommodation is slightly less restrictive of the exercise of religion than the original mandate to which Hobby Lobby and other employers were subject. And so by offering the accommodation, the administration effectively acknowledged the existence of a less burdensome way of achieving the same end, and therefore acknowledged that the original mandate fails the RFRA test. Alito is careful to note that, by pointing to this fact, he does not mean to say that the majority believes the accommodation itself passes the RFRA test, only that the original mandate doesn’t. He thus leaves open the question of the whether the accommodation (now being litigated) could survive the logic of yesterday’s opinion.

But Justice Kennedy may have gone just a little further. Of the five justices who signed the majority opinion, only Kennedy wrote a concurring opinion of his own. It is a peculiar 4-page opinion which frankly seems at first glance to make a fairly random set of arguments. But perhaps the best way to make sense of it is to ask what its purpose might be. And that question points us in particular to two of Kennedy’s arguments.

First, he notes that “it is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a compelling interest in the health of female employees.” And then, by a rather circuitous route, he seems to argue that the administration’s accommodation of religious non-profits appears to be less burdensome on the whole than the other alternative considered in the majority opinion—the government paying directly to provide the contested coverage to women. “The Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program,” Kennedy writes.

The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place.

It is not easy to say what this means, exactly. Kennedy is, as ever, unclear. But it seems to me that Kennedy is here going out of his way to say that he thinks the mandate advances a compelling government interest and that the accommodation might be the least burdensome way to advance it. And those are not just random points to make: they speak to the two-pronged test set out by RFRA.

Of course, the administration’s proposed accommodation was not at issue in this case. No one briefed it or discussed it in detail, and when the plaintiff’s attorney was asked about it in oral argument he said it hadn’t been offered to his clients so he had no opinion about it. So there would be no reason for Kennedy to have reached a judgment on it, and he surely didn’t give it the consideration he would in a case in which the accommodation was directly at issue. But these lines in Kennedy’s concurring opinion do seem to involve his going to some lengths to say he may be open to it—and therefore that today’s majority may not hold when the Little Sisters of the Poor and other groups bring the question of the administration’s accommodation before the Court.

Since the accommodation does not meaningfully differ from the original mandate, Kennedy’s remarks suggest the ultimate outcome of the battle over the mandate may not look like yesterday’s encouraging decision.

In any case, that ultimate outcome likely remains a fairly long way off. Yesterday’s ruling did not resolve the fate of the mandate, but it did reinforce the broader tradition of American religious liberty, and the foundations of American civil society. It was a big deal in broad strokes, even as the particulars remain an open question.

— Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center

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