Archive | Hobby Lobby

1A. What Is the Religious Freedom Restoration Act?

(For an introduction to this series of posts, see here.)

1. Say that you feel a religious obligation to use a prohibited drug — hoasca (the drug at issue in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006)), peyote, marijuana, or LSD.

Or say that you’re a landlord who feels a religious obligation not to rent to unmarried couples (or same-sex couples), even though state law bars marital status discrimination or sexual orientation discrimination in housing.

Or say that you feel a religious obligation to help someone commit suicide, in violation of state law — or a religious obligation not to testify against your parent, your child, or a coreligionist, even when you have a legal duty to do so.

Should you be entitled to an exemption from the generally applicable law, because of your religious beliefs? Or should the government be free to apply the law to you just as it does to others?

Until about 1960 (more or less), the rule was what one might call the statute-by-statute exemption model — religious objectors got exemptions if and only if the statute provided for one, as, for instance, draft law historically had. Judges got into the act only insofar as they created common-law exemptions from judge-made common-law rules, and these exemptions were trumpable by statute. The clergy-penitent privilege, which is an exception from the duty to testify, was one example.

But then in Braunfeld v. Brown (1961) the Supreme Court seemed to suggest that the Free Exercise Clause might sometimes constitutionally mandate exemptions. And in Sherbert v. Verner (1963), the Court expressly adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption. Wisconsin v. Yoder (1972) reaffirmed this, and the period from 1963 to 1990 is [...]

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Hobby Lobby, the Employer Mandate, and Religious Exemptions

Last week, the Supreme Court agreed to decide two new religious exemption cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Store v. Sebelius. There are a lot of moving parts in the legal analysis of those cases, so I thought I’d blog several posts about them, one on each of the main issues in the case. The two cases will be consolidated, so I’ll just speak about “Hobby Lobby,” rather than mentioning both case names. I hope the posts will be useful both for people who want to read them all this week, and for future reference when the questions get discussed again in the coming months, as Hobby Lobby is briefed, argued, and decided.

First, a general roadmap. Hobby Lobby and Conestoga Wood are closely held, family-owned corporations. The owners of the corporations believe for religious reasons that it is wrong to use any devices or products that sufficiently risk killing a fertilized embryo, including by preventing implantation of the embryo. (To my knowledge, they are unanimous on this within each family.)

They also believe that it is wrong for them to be complicit in such killing of embryos, including by providing insurance plans for their employees that cover those contraceptives that prevent implantation. They are thus not opposed to all contraception methods — their beliefs are essentially a sort of life-begins-at-conception Protestant, not Catholic — but they are opposed to some.

They thus claim that the federal Religious Freedom Restoration Act of 1993 entitles them to an exemption from the contraceptive insurance requirement imposed by the Affordable Care Act and its implementing regulations. (Hobby Lobby also argues that the Free Exercise Clause also entitles them to such an exemption, but I won’t focus on this argument.) Under that law,

Government may substantially

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Can For-Profit Corporations Have Religious Purposes?

Expanding on Will’s post from Wednesday (and his prior post here), it seems to me the argument that corporations, as such, cannot press religious liberty claims (or, to put it another way, cannot “exercise” religion) is wholly unsustainable.  As Will notes, a consequence of this position would be the denial of religious liberty claims made by churches.  Yet the Supreme Court has already recognized religious liberty claims made by churches, as in the O Centro RFRA case and many other institutions are clearly religious in purpose, including charities and schools.

Okay, some may respond (e.g., here), churches and other organizations have free exercise rights, but for-profit corporations do not.  But why would this be?  An individual sole proprietor — of, say, a kosher deli, to use Will’s example — would clearly be able to press a religious liberty claim, whether or not she hopes the deli will make her rich (and whether or not she commits to donate her earnings to a religious charity).   Does this individual lose such rights if she incorporated?   Does that somehow make her religious motivations any less sincere? Any less judicially cognizable?  I can’t see how.   What, then, if the deli owner formed a partnership with her equally devout brother?  Would that matter?  And, again, if an informal partnership would be okay, why would the adoption of a corporate form and limited liability matter?

The consequence of the “no religious liberty for corporations” position is that individuals who would like to go into business are penalized if they seek to go into business without any potential recourse, under RFRA or otherwise.  The choice presented by the state is go into business or stay true to your religious beliefs.  Although I suggested otherwise before, it seems to me this approach imposes a substantial [...]

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Hobby Lobby Wins Before En Banc Tenth Circuit

The U.S. Court of Appeals for the Tenth Circuit, sitting en banc, breathed new life into Hobby Lobby’s religious freedom challenge to the so-called “contraception mandate.” Here is how Judge Tymkovich summarized the court’s holding in the opinion for the court:

This case requires us to determine whether the Religious Freedom Restoration Act and the Free Exercise Clause protect the plaintiffs—two companies and their owners who run their businesses to reflect their religious values. The companies are Hobby Lobby, a craft store chain, and Mardel, a Christian bookstore chain. Their owners, the Greens, run both companies as closely held family businesses and operate them according to a set of Christian principles. They contend regulations implementing the 2010 Patient Protection and Affordable Care Act force them to violate their sincerely held religious beliefs. In particular, the plaintiffs brought an action challenging a regulation that requires them, beginning July 1, 2013, to provide certain contraceptive services as a part of their employer-sponsored health care plan. Among these services are drugs and devices that the plaintiffs believe to be abortifacients, the use of which is contrary to their faith.

We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.

More specifically, the court rules as follows:

As to jurisdictional matters, the court unanimously holds that Hobby Lobby and Mardel have Article III standing to sue and that the Anti-Injunction Act does not apply to this case. Three judges (Kelly, Tymkovich, and Gorsuch, JJ.) would also find

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