In Burwell vs. Hobby Lobby Stores Inc the latest chapter was written on the contentious issue of are corporations people? The Citizens United decision started much of this debate with the question of is giving money considered free speech? At the time the court ruled that companies do have that right. Many people, this author included, disagreed that corporations should be treated as citizens of the United States with the full rights that title entails.
Burwell vs. Hobby Lobby takes things a step further and asks if free speech applies to corporations then why not freedom of religion. More specifically, the family that owns Hobby Lobby doesn’t want to provide 4(two types of ‘morning after’ pills and two types of IUDs) of the 20 forms of birth control that must be offered as part of health insurance to employees under the Affordable Care Act(ACA). The company claims that those forms of birth control are tantamount to abortion and to encourage that would go against their Christian beliefs, so to force them to offer the option would be a ‘substantial burden’ on their freedom of religion.
Specifically they want an interpretation of the 1993 Religious Freedom Restoration Act(RFRA) to apply to them. The RFRA loosely states, “the government shall not substantially burden a person’s exercise of religion unless that burden is the least restrictive means to further a compelling governmental interest,” The RFRA was passed because of a 1990 supreme court decision, Employment Divison vs. Smith.
That was a case in which two men in Oregon were denied unemployment benefits because they were fired for failing a drug test. They failed the drug test because they had peyote in their systems which had been consumed in a Native American religious ceremony. The court held that it was ok to withhold unemployment benefits because, “To permit this[smoking peyote] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Furthermore the court found that Oregon’s ban on peyote was a “neutral law of general applicability” and not a law specifically aimed at any particular religious act.
We’re left then with several questions: does the RFRA defend the rights of for-profit corporations, is the ACA a neutral law of general applicability, does the government have a compelling interest in ensuring women are able to have control over their own reproductive systems, and if the answer to the last question is yes, then is the ACA’s employer mandate the least restrictive means to further that interest.
In a 5-4 decision today the court found that the RFRA does apply to ‘closely held’ corporations, and the government does have a compelling interest in women having control of their reproductive systems(including the four disputed forms of birth control), but the ACA is not the least restrictive means to further that interest. Closely held is defined as any company which has at least 50% of its stock held by 5 or fewer people.
Further qualifications did narrow the scope of the ruling, “This decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates, that is for blood transfusions or vaccinations, necessarily fail if they conflict with an employer’s religious beliefs,” and, ” It does not provide a shield for employers who might cloak illegal discrimination as a religious practice.”
Those final two quotes really do limit where this ruling can be applied, but do so in a way that makes the application of the ruling seem shockingly arbitrary. To include birth control methods without including vaccinations and blood transfusions makes it seem like the court’s decision can be boiled down to ‘sex is icky’.
I also feel it necessary to bring up the author of the quote about every citizen becoming a law unto themselves. That was written into the majority decision of the Employment Division v Smith case by Justice Scalia who in the Hobby Lobby case came down in favor of Hobby Lobby. I would like to know if he has changed his mind in the intervening 14 years or why he sees these two cases as legally different.
Overall this will be seen as a victory for religious liberty, but it is also another decision building on the idea that corporations are people. Despite the court’s attempts to limit this case, I am certain we’ll see additional attempts by various organizations to expand what you are allowed to do to others in this country in the name of religion and what other rights that are reserved for citizens will soon also be applied to companies. I’m still on the same side as former Secretary of Labor Robert Reich when he said, “I’ll believe corporations are people when Texas executes one.” Sadly, the Roberts court is quickly turning that line into a joke in more ways than one.
As always, questions, comments, and criticisms are welcome. Answers are guaranteed.