Dangerous Precedents in Hobby Lobby

by Noah Marks

Yesterday morning, the Supreme Court decided Burwell v. Hobby Lobby, holding 5-4 that religious owners of closely-held corporations are exempt from the contraception coverage requirement of the Affordable Care Act based on the 1993 Religious Freedom and Restoration Act.

Writing for the majority, Justice Alito strains to emphasize the limited scope of the decision, claiming that it applies only to closely held companies, only to contraception, and only to this preexisting accommodation. Justice Ginsburg, in dissent, cuts through the rhetoric and reveals the decision’s true, “startling breadth,” given the uncertainty of the accommodation’s legality, the quantity and variety of closely held corporations, and the Court’s ominously limited explicit assurance that racial discrimination is not covered by its logic.

The Hahns and Greens figure prominently in the decision, as Justice Alito assures us of their earnest and devout desire to practice Christianity (as embodied through providing incomplete health insurance) through their corporations. However, despite the Court’s rhetoric about families, the Court portrays control of the companies as manifesting only through the males: it only names and gives titles for the males (although the Greens’ daughter Darsee serves as Creative Director for Hobby Lobby).

Framing the issue narrowly as the Government versus male corporate officers (rather than the Government and female workers versus the corporation) skews the Court’s analysis. The interests of the female workers appear only tangentially, when the Court assumes arguendo that the Government has a compelling interest in enabling women to participate equally in economic and social life. On the other side, the interests of the corporation appear as the interests of the corporate officers (because of the Court’s over-simplified depiction of corporate structure). The result is clear: The interests of living, breathing, resource-limited individuals can almost always trump those of the abstract, vastly powerful, and wealthy State.

The myopia with the worst implication for future cases is the Court’s analysis of the substantial burden placed on the Green/Hahn brand of Christianity. The dissent argues the burden is not significant because of the attenuated relationship between the Green/Hahn religious practice and the individual medical choices of their employees as enabled by their health insurance. The Court dismisses that evaluation as judging the sincerity of the Green/Hahn religious belief, which is (appropriately) above judicial judgment. However, it’s one thing to say that abortion is against my religion and therefore the Government cannot compel me to have an abortion. It’s quite another thing to say that abortion is against my religion and therefore I have the right to prevent others from having the choice to have (what I consider to be) an abortion. The Court accepts at face value the equivalence between them, and because it does not specify a limiting principle, its hard to imagine any amount of attenuation that would override an objection to any action in the public sphere (except to taxes!).

Even worse, in place of that analysis the Court substitutes a quantification of the annual penalties Hobby Lobby would have to pay to the Government either for not providing health insurance or providing incomplete health insurance. The Court focused on the latter’s aggregate, $475M, instead of the per-person per-day penalty ($100). The Court declares that $475M is categorically substantial without acknowledging that the number is so high precisely because so many employees (at least 13,000) would be precluded from complete coverage. The Court also ignores $475M’s relationship to Hobby Lobby’s balance sheet, which included $3.3B in revenue last year. Undoubtedly, $475M is a large number, but because the Court’s decision analyzes only aggregate terms and applies to companies with as few as 50 employees, it seems like any fine of at least $1.82M (50*$100*365) comprises a substantial burden. For Hobby Lobby, that would be a per-person per-day fine of $0.38.

Utilizing decontextualized, aggregate numbers makes the RFRA test turn on the quantity of government fines. That is a dangerously under-inclusive test: future Government ordinances that proscribe religious behavior but only mandate minimal fines would not be protected by RFRA. It is also dangerously over-inclusive: almost any fine when applied to a large entity satisfies the substantial burden prong of RFRA as defined in Hobby Lobby, significantly limiting the Government’s ability to consistently protect Americans.

Only time will tell exactly how large Hobby Lobby’s impact will be. However, by relying on a selective and narrow framing of the issue and utilizing decontextualized economic evidence to analyze substantial burden, the Court has truly unlocked the gates of a minefield.

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