[Photo by Jacquelyn Griffin)

Monday, June 30, 2014

Holy Hobby Lobby II: It's All for the Best?

So, back in 2005, Laurence Tribe had, after finishing volume I of an updated version of his seminal treatise American Constitutional Law, (which I bought, by the bye, even though I had graduated from law school 15 years prior) decided to get out the constitutional treatise biz, essentially because the path of constitutional law had become such a muddied, turbulent incoherent mess of conflicting visions as to be no more than Justice Brennan's "Counting to Five". That, Tribe thought, was not treatise-worthy. A legal treatise addresses a systematic body of law, and synthesizes it.

As someone who once wrote a book on the First Amendment described by my most perceptive reviewer as "Confessions of A First Amendment Hedgehog, I share his definition of what is treatise or even scholarship worthy, but was not ready to consign American constitutional law to that category.

Well, Burwell v. Hobby Lobby isn't a constitutional case, but I am starting to see Tribe's point. As I suspected, "if it tips in favor of the employees, it'll be a narrow opinion on RFRA grounds, possibly limited to closely held corporations, with very strong dissents..."

The opinion should be read, as should the two dissents, by Justice Ginsburg and by Justice Breyer.

The majority opinion, and Justice Kennedy's concurrence, base their reasoning on three prongs:

1. Under RFRA, a for-profit corporation is a "person" the religious faith of is entitled to protection:
Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30.

These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.
There. It's "unlikely" that this will go beyond closely held corporations--which employ up to 53% of Americans--even if that ungrounded assumption is correct.

2. In the case of a closely-held corporation, the religious belief of the corporation may be deemed that of its owners;

3. Any legal requirement that "substantially burdens the exercise of religion" by that corporation, must be justified by a "compelling state interest" and narrowly tailored--the equivalent of constitutional strict scrutiny:

In Hobby Lobby, that meant that, although the Court "assumed" that a compelling interest supported the requirement that employer-provided insurance include contraceptive coverage, where such contraception ran counter to the religious beliefs of the corporation, the requirement was not narrowly tailored, and therefore flunked the test
Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.
Meanwhile, the Court wants you to know that not everything falls in favor of religion:
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work-force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
Comfy now? No? Neither is Justice Ginsburg, whose dissent asks:
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?
Who knows? But under RFRA, as currently understood, for-profit corporations' statutory right to religious exercise trumps women's rights to care under the Affordable Care Act. Because corporations are so devout.

Legally speaking, this is nonsense upon stilts. As I pointed out after the oral argument:
The ultimate question, though, under the First Amendment or RFRA, is whether a corporation, an artificial entity created by the state to shield its owners from liability for debts contracted by the business, to enjoy perpetual life (and thus avert the problems businesses face when a principal dies), and to enjoy special tax privileges, can properly be treated as being the same entity as its owners for the purposes of religious expression rights. In other words, is this legal fiction to be treated as separate from its owners to their benefit in commercial transactions but as being one with them for religious purposes? And what of the well-rooted doctrine that the purpose of business corporations is to maximize return to shareholders, not to allow management to serve its own vision of the good with the shareholders' investment? (I'm not a fan of this rather bleak doctrine, but as Professor Bainbridge at the link notes, cultivating goodwill through socially responsible behavior may fall within the remit of the corporation). The point is, for-profit business corporations are separate from their owners, and not organized for religious purposes. If they are treated as vehicles for their owners' religious expressions, you are giving the owners a double advantage--shielding them from the worst risks of doing business while multiplying their ability to enforce their religious views on employees, clients and others.

The only good news is that, RFRA being a statute, Congress can amend it. Of course, not this Congress, but someday. Huzzah!

So, how is this all for the best? It isn't, of course. Except for in the sense that it exposes the Court's stochastic, unreasoned approach to legal analysis in a way that doesn't permanently deform the legal landscape, if RFRA can be amended or repealed by a less theocratically inclined Congress.

And it vindicates Laurence Tribe's design to abandon making artificial sense of a those stochastic, ends-oriented opinions years after the event.

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