Written by Don Byrd
The U.S. Supreme Court heard oral argument in the highly anticipated Hobby Lobby case. At issue is whether the Religious Freedom Restoration Act applies to for-profit corporations, and if so whether the contraception coverage mandate in the Affordable Care Act violates the religious freedom rights of corporate owners who object on religious grounds to providing such coverage.
As an initial thought about the argument as a whole, clearly the justices are sharply split on whether and how RFRA should apply in a case like this. While most media reports are focused on the issue of the corporate exercise of religion, another important element of this dispute seemed to trouble certain members of the Court: the impact on the rights of third parties (namely, the female employees who would be denied the right of free access to certain contraceptives) if RFRA is held to bar enforcement of the law against objecting employers. For more than one justice on the Court, this issue seemed to be the sticking point in knowing how properly to apply RFRA in this case.
You can read the entire transcript here. Below are some highlights from discussion related specifically to that issue:
JUSTICE KAGAN: So suppose an employer… refuses to fund or wants not to fund vaccinations for her employees, what happens then?
MR. CLEMENT [The attorney representing Hobby Lobby]: Well, if we assume we get past the substantial burden step of the analysis, then the next step of the analysis is the compelling interest and least restrictive alternatives analysis. And every case would have to be analyzed on its own. I do think in the context of vaccinations, the government may have a stronger compelling interest than it does in this context because there are notions of herd immunity and the like that give the government a particularly compelling interest in trying to maximize the number
JUSTICE KAGAN: Blood transfusions?
MR. CLEMENT: Blood transfusions. Again, each one of these cases, I think would have to be evaluated on its own and apply the compelling interest, least restrictive alternative test and the substantial burdens part of the test.
JUSTICE KAGAN: So really, every medical treatment. . . . So one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform.
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JUSTICE KENNEDY: [H]ow would you suggest that we think about the position and the rights of the employees? . . . [I]n a way, the employees are in a position where the government, through its healthcare plans, is, under your view, allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious – religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?MR. CLEMENT: Well, no, it’s not just the way it works, Justice Kennedy. . . . I think the first thing about thirdparty burdens is you have to ask where are they coming from. And if the thirdparty burdens are coming from an employer I mean, an employer right now can put some burden on their rights because they have to listen to religious music or whatever. That’s not as serious as a burden that’s coming directly from the government.
JUSTICE GINSBURG: But, Mr. Clement . . . . [t]he Court was very clear when it came to RLUIPA, which you said is similar to RFRA, that the accommodation must be measured so it doesn’t override other significant interests. . . . [T]his Court made it very clear, that the accommodation has to be balanced and you have to take into account other significant interests.
MR. CLEMENT: Right. But … those other significant interests that carry the most weight have to be independent of the very statute that’s at issue in the case and that the party seeks an exemption from. . . .
JUSTICE SOTOMAYOR: I’m not sure that that squares with Lee. The statute created the right to Social Security, and there the Court said you can’t deprive employees of a statutory right because of your religious beliefs. So Lee is contrary to the point you’re making.
MR. CLEMENT: There, too, I have to respectfully disagree, because if you remember the facts of Lee, Lee is brought not just by the employer, but by the employee. So the particular employees there don’t have a beef with what he’s doing at all. And I thinkwhen they’re talking about thirdparty burdens there, what the Court is really talking about is the burdens of everybody else who contributes into a system where uniformity, to use the Court’s words, was indispensable. . . .
JUSTICE KAGAN: . . . But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, no, I don’t want to give that, that woman is quite directly, quite tangibly harmed.
MR. CLEMENT:. . . I do think when you think about impacts on third parties, not all of these burdens are created equal. And that, too, I think is borne out in this Court’s cases. And the most relevant factor is, is there some alternative way for the government to ameliorate the burden.
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Here … all we’re really talking about is who’s going to pay for a subsidy that the government prefers. This is not about access to the contraception. It’s about who’s going to pay for the government’s preferred subsidy. And I think in that context, there are ample alternative ways to address any burdens on third parties.
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JUSTICE ALITO: Are there ways of accommodating the interests of the women who may want these particular drugs or devices without imposing a substantial burden on the employer who has the religious objection to it?MR. CLEMENT: There are ample less restrictive alternatives, Your Honor.
JUSTICE ALITO: What are they?
MR. CLEMENT: And I think they all flow from this fact that this is ultimately about who’s going to pay for a substitute
JUSTICE SOTOMAYOR: Those are alternatives that you’re asking the government to incur or the person to incur. There isn’t an alternative that doesn’t put a cost on someone else.
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GENERAL VERRILLI [representing the Government]: [W]hat I think is the most important point here, is that if this exemption were granted, it will be the first time under the Free Exercise Clause or under RFRA in which this Court or any court has held that an employer may take may be granted an exemption that extinguishes statutorilyguaranteed benefits of fundamental importance.Lee came to exactly the opposite conclusion with respect to Social Security benefits… that it was imperative that the employee’s interest be protected. And that is the fundamental problem with the position that my friends on the other side raise here, that they leave the thirdparty employees entirely out of the equation.
For more on the case and the Baptist Joint Committee’s perspective on RFRA, read BJC Executive Director Brent Walker’s “RFRA’s constitutionality called into question.” General Counsel K. Hollyn Hollman gave the BJC’s take on the entire case in January with “BJC supports strong legal standard in contraception cases.”
