Part 2: The Concerns of Dissenters in Burwell v Hobby Lobby

Part 2: The Concerns of Dissenters in Burwell v Hobby Lobby

Earlier this week, I wrote about the majority opinion in the U.S. Supreme Court’s Hobby Lobby case. The five-member majority found that closely held for-profit corporations such as Hobby Lobby qualify as “persons” for the purposes of two relatively recent federal acts having to do with religious freedom (both signed into law by then-President Bill Clinton).

All nine justices accepted the sincerity of the religious beliefs of the corporate owners. They also accepted the compelling state interest behind the Affordable Care Act, including the specific mandate to provide contraceptive services without cost to plan participants. For the majority, these two accepted claims led to the requirement of applying a particular test to the appropriateness of the government’s mandate. The test is whether or not the specifics of the mandate constituted the “least burdensome” means by which the state could achieve its legitimate ends.

Justice Samuel Alito, writing for the majority, concluded that there were other, less burdensome ways for the state to accomplish its goals. The court ruled that the mandate of coverage of four specific FDA-approved contraceptives (all arguably methods that frequently or always function to terminate a pregnancy, as opposed to preventing one) could not be imposed on the companies, given their owner-inspired faith-based opposition to abortion.

As has been true so often with the Supreme Court over more than a decade now, this was a close decision. Justice Ruth Bader Ginsburg, in the dissent all four dissenting justices signed (though Justices Breyer and Kagan distinguished their position from Justice Ginsburg’s on precisely one issue) is a point-for-point rejection of the majority’s analysis.

One of the important contested issues is the question of whether Hobby Lobby, Conestoga Wood Specialties or any other corporation is a “person” with regard to rights associated with religious expression. The Supreme Court in recent years has ruled that corporations are persons in terms of other First Amendment rights, specifically freedom of speech. While the Hobby Lobby case is not couched in terms of the First Amendment right to “free exercise of religion” (the case was brought forward under the Religious Freedom Restoration Act of 1993 and the Religious Land Use and Institutionalized Persons Act of 2000), the foundational basis of these acts is our collective understanding of the need to protect religious liberty as enshrined in the First Amendment.

But can a corporation have religious beliefs?

Justice Ginsburg said no.

Noting that the Supreme Court, until Burwell v Hobby Lobby, never has “recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law,” Justice Ginsburg goes on to give an explanation for that fact.

the exercise of religion is characteristic of natural persons, not artificial legal entities. . . . Corporations, Justice Stevens . . . reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.”

Of course, not-for-profit religious organizations often are corporations as well, yet they are treated as

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having religious convictions (and some, at least, are so distinguished in the rules implementing the Affordable Care Act). The reason this is so is that their purpose for existing is explicitly religious in nature.

One could argue, however, that there are people in for-profit business who embrace a religious purpose as central to their reason for doing business. Similarly (and with regret), one could argue that some individuals form not-for-profit religious corporations with the purpose of generating wealth for themselves as their primary reason for promoting a particular faith. In other words, perhaps the distinction in fact is more subtle than the distinction in law.

Most likely, most for-profit corporations are about profit. Many such corporations, and nearly all large ones, also adopt an ethical or moral code for doing business that reflects broadly shared values. Similarly, it seems likely that most not-for-profit religious organizations are fundamentally about faith. To some extent, they too must be concerned about revenue, but we trust that revenue is a means to the fulfilment of a higher purpose, not the end itself.

The question is, how does one handle the exceptions?

As Justice Ginsburg notes, this is “a minefield.” Just as has been true in the case of United States v. Windsor (which has led to a wave of cases and decisions overturning prohibitions of same-sex marriages in state law), the court may say it is making a “limited” decision, but the logic of the majority opinion will drive future litigation and lower court determinations, no matter how much the majority attempts to qualify the sweep of its decision.

This conversation is specifically about corporations, “persons” only as a legal fiction created by legislative act. The legal status of “personhood” they possess was, originally, only a means of facilitating certain formal legal ends. Indeed, crates of eggs, artistic works, and boats also are or have been treated as “persons” for the purposes of the law . . . essentially always to facilitate certain kinds of economic transactions and liabilities.

In one sense, this case comes down to a dispute about what it means to be a ‘person’. That lies at the heart of the debate in Burwell v Hobby Lobby, not only when it comes to corporations, but to pregnancy itself.

Next: The Politics of Definitions

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