Today’s decision in the Hobby Lobby case represents a narrow but important victory for business owners across the United States. The Court ruled that the “contraception mandate” provision of Obamacare violates a federal statute called the Religious Freedom Restoration Act (RFRA, or “riffra” for short), which restricts the conditions on which the government can impose requirements on people that conflict with their religious beliefs. I’ll explain that in detail below, but there was a preliminary point which was the focus of PLF’s brief in the case: whether businesses can even bring lawsuits of this sort in the first place.
The Hobby Lobby case was actually two cases, combined. In these cases, business corporations owned by religious individuals sued, arguing that the contraception mandate violated their free exercise of religion under the First Amendment, and also restricted their rights under RFRA. The lower courts dismissed the lawsuits, holding that for-profit business corporations couldn’t bring these lawsuits because they don’t “exercise religion” under the First Amendment, or they aren’t “persons” protected by that Amendment. In our brief, we joined with the Reason Foundation and the Individual Rights Foundation to argue that corporations can exercise religious rights—after all, nobody denies that churches and non-profits are protected by the First Amendment. So why discriminate against for-profit corporations? In fact, religious groups very frequently combine their non-profit and for-profit activities in what they do.
The Court agreed with us on that point. While it’s a “legal fiction” to say that corporations are “persons” under the First Amendment, “the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends…. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardelprotects the religious liberty of the humans who own and control those companies.”
The Court recognized that business owners, like everyone else, have religious views and often express those views through their business activities. They exercise their religious freedom in all sorts of ways, including by creating corporations and engaging in profit-making enterprises—and that they should not lose protections for religious freedom for that reason. We also argued that people exercise their religious freedom when they use their power as shareholders to control corporations, but today’s decision is specifically limited only to close corporations, and not publicly-traded corporations.
The Court goes on to rule in favor of the companies based on RFRA. That statute was passed in reaction to the Supreme Court’s decision in Employment Division v. Smith, in which the Court said that the Free Exercise Clause does not allow people a “Get out of the law free” privilege, whereby they can refuse to follow the law if their religious practices conflict with the law. That decision made a lot of sense, but it also causes problems—and in RFRA, Congress tried to balance these considerations by saying that if a law is passed which restricts your religious free exercise, that law has to be as narrowly targeted as possible. The Court today decided that the contraception mandate is not as narrow as possible because the Congress could accomplish its objective without intruding on Hobby Lobby’s rights by simply paying for contraception itself. We did not brief this issue. But that was the basis of the Court’s decision—and it is a relatively narrow one.
Sadly, narrow rulings will not fix this problem. Government today is so all-pervasive, and tries to control so much, that it inevitably collides with individual constitutional rights of all sorts. We hope the Court recognizes in future cases—and they’re coming—that Obamacare does violence not just to religious freedom, but to the Constitution as a whole