Hobby Lobby, Conestoga Wood, and Mardel – and their human owners – won their day in court today with the Supreme Court deciding that the HHS regulation contraception mandate violates Federal law. The law in question is the Religious Freedom Restoration Act (RFRA), which requires that a person’s exercise of religion may not be substantially burdened (by government rule) unless the rule furthers a compelling government interest and is the least restrictive means of furthering that compelling interest.
Some of the good things about this decision: It makes it clear that for religious purposes “persons” means corporations that are for profit if it also means non-profits. HHS agreed that non-profits are persons for the RFRA, so they lost that point right out of the starting gate. It uses the highly principled and absolutely correct notion that treating corporate persons as having religious rights is for the sake of the religious rights of the humans who run the corporation. Something we at W4 had already pointed out not too long ago, here.
Secondly, the decision rather refreshingly invokes and uses the notion that “making a profit” and “operating according to religious beliefs” need not be separable in substance or in practice. The fact that a corporate person is intended to make a profit isn’t proof that such person can be divorced from the owners’ express intent to live religiously in the business of making a profit. (Which is not the same thing, at all, as making profit your religion. Not AT ALL at all, if you see).
Third, the decision shoots down the notion that the fact that the penalty of $2,000, being less than most employers will pay for most employees’ coverage, is not a substantial burden. They point out that the burden is not simply financial, but religious: the burden is on conducting their business according to their religious beliefs.
Fourth, the justices chose not to attempt to parse overly closely just how offensive an act would be to the religion of the burdened party. Instead they more or less dragooned the moral principle of non-cooperation with evil directly into their reasoning:
This belief implies implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.
Some things that the decision is less than fantastic on: The holding only applies explicitly to closely held corporations. To temper this, the rationale in the decision will clearly apply also to many non-profits organized with a religious theme, even if it is a very large corporation. However, although the decision seems to point out that there is no argument presented that forces the SC to say the holding cannot be applied to publicly traded corporations, the SC does not assume that result, I think they are leaving that for another day.
The SC ”assumes” that the regulation mandating cost free contraceptives (including the four that are abortifacient) are in pursuit of a compelling government interest. I find it appalling that they could make this assumption, given the incredibly frequency with which they dismissed boat loads of other government interests as being “not compelling” that had 10 to 1000 times the claim to the name. But apparently the justices did not mean that they were leaning in the direction of accepting the HHS argument on this point – they make a rather forceful argument against that - rather (so I gather) they were saying that for the purposes of this decision, even if you assume hypothetically that the HHS case that the contraceptive mandate is compelling, you still don’t pass the test that it is the least burdensome way of doing so. I don’t like the way they presented this at all, and I am sure there will be a liberal wacky judge who is perfectly willing to take their blasé “assumption” as proof positive that the mandate furthers a compelling interest.
The worst of what the Supremes do here is they accept the HHS “exception” or accommodation rule that allows objecting religious non-profits to self-certify that they object, and then their insurance co has to provide the coverage “without cost sharing” on the entity objecting. This rule is also being challenged in courts – but the Supremes have not heard the arguments on these cases yet, so they might have jumped the gun on the issue.