Rather than continuing to apply the Lemon Test the Court should rely on an accurate account of the founders’ understanding of the Establishment Clause.
The Supreme Court has issued its long-awaited ruling in Burwell v. Hobby Lobby Stores, Inc. On both the standing and merits questions under the Religious Freedom Restoration Act, the federal government lost. In a 5-4 majority decision authored by Justice Alito, the Court held that:
- Closely held for-profit corporations such as Hobby Lobby are “persons” within the compass of RFRA and can exercise religion (Justices Breyer and Kagan did not decide this issue one way or the other);
- Closely held for-profit corporations that have religious objections to providing contraception as part of their employee health plans suffer a substantial burden on their religious exercise by operation of the contraception mandate; and
- Even if the government’s broadly formulated interests in “public health” and “gender equality” are compelling (a question left undecided by the majority opinion but seemingly embraced in Justice Kennedy’s concurrence), the government nevertheless has failed to achieve its interests by the least restrictive means.
The least restrictive means portion of the analysis was always the most difficult part of the test for mandate supporters. It is, as the Court said, “exceptionally demanding and it is not satisfied here.”
The decision is narrow in some obvious ways, but potentially broader in others. The Court emphasizes that its holding is limited to this particular healthcare mandate, but other healthcare mandates (involving immunizations or blood transfusions, for example) might come out differently. The majority opinion reaches only closely held, for-profit corporations that offer employee health plans. Publicly traded corporations with many diffusely associated shareholders are not covered. Finally, the holding is hardly groundbreaking because the case has no constitutional import at all. This has always been primarily a case about the interpretation of a federal statute, and any First Amendment claims were not reached. Justice Ginsburg mistakenly argues that Employment Division v. Smith forecloses constitutionally required exemptions for corporations like Hobby Lobby; that remains an entirely open question.
But the holding is potentially broad in the following way. The majority says that RFRA protects a broader class of religious exercise than is covered by the First Amendment: “any exercise of religion” receives protection under RFRA, and not only those forms of exercise recognized in the constitutional doctrine.” The Court further states: “By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.” And again: “Nothing in the text of RFRA as originally enacted suggested that the statutory phrase ‘exercise of religion under the First Amendment’ was meant to be tied to this Court’s pre-Smith interpretation of that Amendment.” These statements eliminate the claim that a legislature can go no further in accommodating religion than the sorts of claims adjudicated in the Court’s pre-RFRA constitutional jurisprudence.
Stripped of the culture-war rhetoric that has saturated the contraception issue for years, the decision is a fairly straightforward exercise in statutory interpretation. The practical result is probably that closely held for-profits will receive something like the government largesse that nonprofit objecting corporations now receive. No woman who works for an objecting company like Hobby Lobby and who desires cost-free contraception will be denied access to it. But here are two reflections about the case’s perhaps deeper meaning.
The Fate of Objecting “Accommodated” Nonprofit Organizations
Alongside the Hobby Lobby challenge to the contraception mandate are the cases brought by nonprofit religious organizations including the Little Sisters of the Poor. Rather than receiving an exemption outright, those organizations have been required by the federal government to object to providing the contraceptive products and services in their health plans and then to designate a third party who must provide them. This scheme is called an “accommodation” and is less than an exemption: an exemption is what churches and their integrated auxiliaries received.
The Supreme Court has now stated in Hobby Lobby that the “accommodation” provided to objecting nonprofits is a “less” restrictive means of achieving the government’s interests than what the government offers to for-profit entities—to wit, no exemption at all. This particular means had special rhetorical power because it was one that, as Justice Kennedy stated, the government “itself has devised.” It would cost the government nothing to implement it, and it would fulfill the government’s interests in exactly the same way. The “accommodation” is characterized by the Court as a “less” restrictive means of achieving the government’s interests than driving it down the throat of objecting for-profit employers. That does not necessarily mean that the “accommodation” is the “least” restrictive means available to the government, but it might. The Court adds that “[w]e do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims,” and Justice Ginsburg gamely calls the majority’s bluff on this score in her dissent.
The resolution to this problem may lie in footnote 9 of the Court’s opinion, where it refers to its order in the Little Sisters of the Poor case requiring that organizations and others like it simply to notify the federal government of their religious objections, without the requirement to designate an alternative provider. The objecting nonprofits can do that simply by mailing the government a copy of their complaint.
The Separation of the Legal Academy and the Court
This marks the third Supreme Court religious freedom decision in a row in which the arguments pressed by a substantial number of law professors were not accepted by the Court. Certainly the comment does not apply to all legal academics; one law professor was counsel for Hobby Lobby. But a distinct, overlapping, and numerous segment of law professors, loosely connected by suspicions about conservative religious beliefs and by the desire to restrict the influence of those beliefs on public and social life, has been on a losing streak.
The string of misfires began in the buildup to the ruling about the so-called “ministerial exception,” which involved the constitutional right of religious entities to make independent employment decisions about their ministers. Many legal scholars made the argument (one accepted by the Obama administration) that, notwithstanding the text of the First Amendment and the tradition of religious freedom in the United States, religious entities were to be treated no differently than any other secular association. The Supreme Court unanimously rejected that claim, calling it “extraordinary.” One might say more modestly that, from the standpoint of the doctrinal and social history of religious freedom in this country, it was not an argument likely to persuade the Court.
Next this term came Town of Greece v. Galloway, a case involving the constitutionality of legislative prayer. Once again, as a textual, historical, and doctrinal matter, the case was not particularly difficult. A majority of the Court relied on the long, uninterrupted history of legislative prayer—one that existed comfortably and ubiquitously before, during, and after the drafting and ratification of the Establishment Clause—to find the practice constitutional, though it imposed various sensible limitations on the practice. There was a lone case nearly directly on point—Marsh v. Chambers (1983). Unsurprisingly, the Supreme Court did what it usually does under the circumstances: reaffirm the precedent and apply it. Even the dissent in Town of Greece accepted the legitimacy of the traditionalist and historically sensitive approach laid out in Marsh. And yet the legal professoriate (this time without the Obama administration’s support) railed against the constitutionality of legislative prayer before and after the Court’s unremarkable and largely predictable holding.
The same pattern can be seen in this case. A significant and influential fraction of the legal academy argued that Hobby Lobby should lose. Their arguments were sometimes cleverly imaginative, and other times somewhat strained. They ranged from claims that there was really no mandate at all, to claims that granting an accommodation would violate the Establishment Clause, to claims that corporations can never exercise religion (this came as a surprise to the corporations that had in the past brought religious freedom challenges), to claims that for-profit corporations alone cannot exercise religion, to claims that RFRA is unconstitutional as a violation of the separation of powers, and so on. All of these arguments were rejected by the Court. Many of them were not touched by the dissents.
Justice Ginsburg came closest to endorsing one claim I have heard advanced by a prominent group of legal academics when she stated that, “no tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others.” But exemptions—religious and otherwise—almost always impose burdens on others, burdens that harm others’ interests in some way. Justice Ginsburg herself described the interest in “uniform compliance with the law” as “compelling,” and presumably the poor soul who subscribes to such an interest is “harmed” by the failure to achieve it. As Justice Alito observed at footnote 37 of the majority opinion, if accepted, Justice Ginsburg’s third-party-harm argument would mean that by characterizing “any Government regulation as benefiting a third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless.” To say that the American tradition of religious freedom forbids exemptions that impose any harms on others is tantamount to saying that it forbids exemptions, period, other than those that cost nothing. Yet here these arguments are totally beside the point, since the government could achieve its interests by many cheap alternative mechanisms that would have no negative effects at all on the female employees’ access to cost-free contraception coverage.
Many legal academics may contest my claims about their arguments in Hosanna-Tabor, Town of Greece, and Hobby Lobby. The Supreme Court, they will tell you, got it wrong. And their job, anyway, isn’t to predict Supreme Court rulings. It is to promote social change or to advocate for justice or to advance various important policy objectives. Fair enough. The fact that the Court is rejecting their arguments certainly does not mean that the arguments are without merit. But the results in these cases and the rationales used to reach them were not unexpected as a legal matter. They followed fairly plainly from the textual, historical, and doctrinal legal backdrop. And they may suggest that the oft-remarked distance between the legal academy and the bench is growing, and that it is nowhere more in evidence than in the law of religious freedom.