Friday, July 11, 2014

Where does Burwell vs Hobby Lobby go wrong?

As I may or may not have mentioned before, my boyfriend has a law degree.  So I get to hear a lot of lawyerly opinions on the recent Burwell vs Hobby Lobby decision, both from him and his friends.  And they seem to contrast with the opinions I get from atheist blogs, where there's lots of panicking about the consequences, but very little explanation of the mechanical details of the decision.

The Hobby Lobby decision was based on the Religious Freedom Restoration Act (RFRA), a federal law from the 90s.  The RFRA says,
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.
Laws specifically targeted against religions are already unconstitutional, but the RFRA adds religious protection from neutral laws.  For example, if a company bans hats among employees, that is a neutral rule that disproportionately affects certain minority religions which mandate wearing hats.

It's intended to protect religious minorities, because while the legislature is always conscious of the impact on the religious majority, they may ignore the impact on religious minorities.  For example, during prohibition, there was an exception for sacramental wine.  But in the 90s, some Native American employees were fired for using peyote, which is the case that motivated the passing of the RFRA.

Of course, you can imagine neutral laws which really should apply to everyone even if they burden some religions.  Non-discrimination (with ministerial exceptions) seems like an obvious one.  Therefore, RFRA does not completely rule out laws which burden exercise of religions.  Rather, it requires that those laws undergo "strict scrutiny".  That means they must be:
  • Justified by a compelling government interest
  • Narrowly tailored to achieve that interest
  • Be the least restrictive means to achieve that interest
Hold on, isn't women's health a compelling government interest?  Did the Supreme Court decide that it is not compelling enough?

In fact, the Supreme Court did not opine on whether it was compelling.  Instead, they ruled that the Affordable Care Act (ACA) was not the least restrictive means to achieve that interest.  And here's why.  The ACA already exempts nonprofit religious organizations from paying for contraception.  The legislators wrote that in.  So if they made exceptions for nonprofits, why not for-profits too?  How can we argue that the ACA is the least restrictive law when applied to for-profits, when it is already less restrictive on nonprofits?

This is not so much bad because of the direct consequences.  Hobby Lobby employees will still get contraception covered by their health insurance, because the health insurance is required to pay for it when Hobby Lobby doesn't.  Presumably, the insurance providers will just raise non-contraceptive premiums to balance it, and Hobby Lobby can pretend they're not paying for it when they sort of are, really.  But it's bad because it sets bad precedent.

This should provide a road map to the various things that could have been wrong with the Hobby Lobby decision.  Should the RFRA be changed, or removed altogether?  Is the problem (as many argue) that RFRA should apply only to individuals and not corporations?  Is the problem with the legislature, who already made a huge exception for nonprofits?  Or is there something wrong with the slippery slope argument between nonprofits and for-profits?  What do you think?


miller said...

I have to admit that basically every week I realize something new about the Hobby Lobby case that really bugs me, but here's a few of the ones I've been pondering recently:

1. The court acted as if it was a question of just the government vs. the corporation's religion. I (and most liberals) tend to see it as the government & employees who want birth control (and their religious beliefs) vs. the owners of the corporation. This isn't so much a bad precedent issue as just annoyingly sloppy analysis that doesn't do a good job of addressing counter arguments.

2. Perhaps explaining the mistake above, the court acted as if corporations are just alter egos of their owners/CEOs. Basically, the court seems to think a corporation's religious beliefs are decided by whomever dictates what the corporation does. This is somewhat intuitive, except for the fact that the entire point of a corporation is that it is a separate person from its owners. Given that, it doesn't seem as obvious to me that a corporation's beliefs are decided by those of its owners, and not any other option (basically, I want a more satisfying explanation of how we determine a corporations beliefs and why we use that method). Instead, this decision seems to be butchering the theory behind corporations. That's bad precedent.
There's also a funny thing in the fact that when forming a corporation, you usually have to say its purpose is (in the broadest possible statement) "any lawful purpose". Yet here, the corporation is allegedly formed for a purpose that requires an exemption from the law- in other words, they lied (sort of) on their founding documents and the corporation was actually formed for an unlawful purpose. I'm not sure that's a great argument, but I do find it kind of hilarious.

3. The decision acts like health care coverage is not compensation. When an employer gives someone healthcare coverage, it is meant as compensation akin to a salary or wage. So I feel like the court needs a better explanation of why health care coverage is different from salary or wages. While its true that this is exempted from taxation, that exemption is solely to encourage health care coverage (there is no doubt that it would be considered compensation without that specific exemption). It seems weird to then use that exemption for the exact opposite policy- to not cover health care.

4. The court says the decision will be limited in scope, but doesn't give a satisfying explanation for why. Admittedly, this is a complaint I also had with the Windsor case, so it just seems to be a thing the conservative justices do now when they write (I'm counting Kennedy as a conservative- and wrt to Windsor, as much as I like the outcome of some of Kennedy's cases, I almost always hate his writing and his reasoning).

So in case it's not clear, my main problems are just that it's bad precedent, it contradicts other areas of the law, and it sometimes feels like the court is arguing in bad faith or just generally not even trying to argue effectively anymore. Hopefully it won't have any meaningful effect on access to birth control and will remain limited in scope, so my complaints can remain more about the bad theory and arguments, rather than the effect.

miller said...

I haven't read the Hobby Lobby case. Prior to that case, I don't think the RFRA, as interpreted by the Supreme Court, requires strict scrutiny, which is almost impossible to meet. Note that City of Boerne v. Flores substantially limits the scope of the RFRA; there, the Court notes that only the Court, not Congress, may create constitutional rights.

I'll look more into the history.

miller said...

According to Siedel, City of Boerne v. Flores decided that RFRA could not apply to state laws. But the ACA is a federal law, so it wasn't relevant.

miller said...

I think your concerns reflect some of the more complicated questions on my bf's wall (ie the ones I didn't understand). Maybe I could get him to comment.