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Congress Actually Decided The Hobby Lobby Case Decades Ago (Forbes.com) June 30, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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You can bet on hand-wringing and outrage about judicial activism and political motives behind the 5-4 U.S. Supreme Court decision in the Hobby Lobby case but, in fact, this case was all but decided in 1993 when Congress passed the Religious Freedom Restoration Act (RFRA). Both the liberal justices who dissented in the case, and others who attack the decision as conservative activism, should instead be aiming their arguments at Congress for enacting that law, because today’s court opinion is a relatively straightforward and narrow application of the RFRA.

Unhappy with a Supreme Court decision that narrowed religious freedom (Department of Human Resources of Oregon v. Smith, 1990), Congress took matters into its own hands and passed the RFRA. Whereas the Court in Smith said that “neutral, generally applicable laws could be applied to religious practices even when not supported by a compelling governmental interest, “ the RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Few may understand that Congress, as a co-equal branch with the Supreme Court under the Constitution, has the power to pass laws and, in some cases, thereby alter constitutional interpretation through legislation.

The Religious Freedom Restoration Act, then, established a high bar for any law impacting religious liberty, saying that not only must the government have a compelling interest in doing so, but it must use the “least restrictive alternative” available to accomplish its purposes. That is to say, if there is another way to accomplish the government’s purpose with a lesser restriction on religious liberty, that is what is required. In the case of contraceptive services, the Affordable Care Act (ACA) had already created such an alternative for religious nonprofits (churches and religious associations), providing that insurance administrators make those services available to individuals without imposing any cost-sharing on the religious organization. The Court in Hobby Lobby simply, and narrowly, said: Apply that same alternative to family businesses that have religious objections to the contraceptive services required by the ACA. Nothing dramatic or even surprising here—any politics or activism came in passing the RFRA, not in the Supreme Court’s application of it in Hobby Lobby.

Of course the additional pronouncement in today’s decision was the Court’s holding that such religious rights may be exercised by a business, not just individuals. But this is not unexpected either—lower federal courts, as well as the U.S. Supreme Court, have been laying the groundwork for the idea that individuals do not give up their constitutional rights based merely on the legal form in which their business operates. Indeed, the Dictionary Act, which courts follow in the absence of some special definition in a particular law, defines “person” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies as well as individuals.” So again, disagree if you want, but your objection is really to those who passed the Religious Freedom Restoration Act without some special definition of “person” or with the Dictionary Act and its broad definition.

Indeed, even though the Court was clear that its Hobby Lobby decision only applied to a family-owned business, we should anticipate that one or more publicly-held companies will soon bring a follow-on case, claiming they also have religious rights. The Court commented in Hobby Lobby that this seemed “improbable” because of the “practical restraints” of a diverse set of shareholders sharing religious beliefs. But nothing in the RFRA or in the Court’s decision would prevent a publicly-held corporation from stating religious views and, as long as shareholders were aware of those when they purchased the stock, it would seem such rights should also be protected. In any event, it seems likely one or more such public companies will try.

In short, the Hobby Lobby decision should not have been a surprise. The underlying religious freedom issues were resolved 21 years ago when Congress passed the Religious Freedom Restoration Act. And the notion that corporations are people has been in the Definition Act since 1947. Dissenters argue that the increasing diversity of our society demands different definitions and outcomes, but this ignores two important points, one of process and one of substance: Let them amend the laws, if they wish, to make their point, rather than relying on judicial interpretation and activism, and allow their own understanding of a diverse society to include those committed to the free exercise of their religious beliefs.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2014/06/30/congress-actually-decided-the-hobby-lobby-case-decades-ago/

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