SCOTUS up angle1

Written by Don Byrd

In the Hobby Lobby case, the U.S. Supreme Court ruled this morning that the government’s contraception coverage mandate violates the company’s religious freedom rights under RFRA. (For background on RFRA, see the BJC’s very helpful resource page here.) This means a couple of notable things: 1) the Court has found RFRA applies to closely-held corporations. At least some corporations can have religious beliefs. 2) The Court was not convinced by the government that the mandate was the least restrictive means at their disposal to achieve its goals.

The 5-4 decision was written by Justice Alito. A dissenting opinion was written by Justice Ginsburg. Justice Kennedy added a brief concurrence.

Below are some key quotes and basic arguments on both sides of the opinion, which is here. (For additional coverage follow me on Twitter – @bjcblog – and watch the BJC Blog here.)

The Majority Opinion (Alito)

Here is Alito’s bottom line: The government’s accommodation for religious nonprofits shows there is a means of providing coverage without burdening religious beliefs of corporate owners. (citations are removed below, and the bold emphasis is added):

HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. . . .

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.


Can corporations exercise religion? Why not, Alito asks. Corporations, he emphasizes, are allowed many purposes beyond profit (citations removed, emphasis added):

Some lower court judges have suggested that RFRA does not protect for-profit corporations because the purpose of such corporations is simply to make money. This argument flies in the face of modern corporate law. . . . While it is certainly true that a central objective of for-profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives.  . . . If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.

Alito rejects the argument that because the employee ultimately faces the religious/moral question of using contraception, it is not the employer’s religious burden. It is not the court’s business, he says, to evaluate the asserted religious beliefs for anything but sincerity:

The [plaintiffs] believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief 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. . . . HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.

Does this mean RFRA allows any religious objector to opt out of any insurance coverage requirement? No, Alito explains:

[O]ur decision in these cases is concerned solely with the contraceptive mandate. 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 (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Lastly, Alito emphasizes, the role of the Court is not to question the wisdom of RFRA but to enforce it.

The dissent worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”


In his concurrence, Justice Kennedy becomes the first to acknowledge the issue that religious exercise here restricts the liberty of others (namely, the employees). He sides with Justice Alito because the government, he says, has a ready solution to this problem.

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means.

The Dissenting Opinion (Ginsburg)

In her dissenting opinion, Justice Ginsburg focuses on her argument that RFRA was designed only to restore the Court’s previous jurisprudence, not expand it as Justice Alito claims the law does. “Misguided by its errant premise that RFRA moved beyond its pre-Smith case law, the Court falters at each step of its analysis.”

First, she notes, corporations cannot exercise religion, and there is good reason for treating religious organizations differently than commercial for-profit companies:

The First Amendment’s Free Exercise protections, the Court has indeed recognized, shelter churches and other nonprofit religion-based organizations. “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community,” and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” The Court’s “special solicitude to the rights of religious organizations,” however, is just that. No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had never been extended to any entity operating in “the commercial, profit-making world.”

The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. . . .  The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.

Second, Ginsburg counters, the substantial burden requirement deserves more careful attention. Justice Alito’s opinion, she suggests, improperly collapses the distinction between a sincere belief and a substantial burden.

I agree with the Court that [the plaintiffs’] religious convictions regarding contraception are sincerely held. But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’] beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake.

Undertaking the inquiry the Court foregoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. . . .

It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed.

Third, Ginsburg takes issue with the Court’s dertermination that a less restrictive alternative is availabile, in that the government could pay, which – she notes – could always be claimed as a less restrictive alternative.

[W]here is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?

Lastly, Justice Ginsburg argues the Court errs in dismissing the Lee ruling as limited to tax situations (In Lee, the Court rejected the First Amendment claim of an Amish sole proprietor who objected to making Social Security payments on behalf of employees):

[T]he Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so.

The Court’s insistence, she warns, that each instance of religious objection in the commercial sphere must be evaluated on its own merits risks religious discrimination and means the Court “has ventured into a minefield.”