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Does Hobby Lobby Have a First Amendment Case? Yes and No

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At first glance, the Hobby Lobby case seems slightly ludicrous: on grounds of tender conscience, the crafting retailer refuses to include certain contraceptive methods on employee health insurance plans mandated by the Affordable Care Act (ACA). Most of us would not intuitively feel that a for-profit corporation has a right of religious expression that would exempt it from a generally applicable law. But it is the nature of First Amendment cases to take rights that are intuitively necessary in counterintuitive and slightly absurd directions. The Supreme Court has elevated that tendency to a fine art, and it does not seem likely to stop now: it will hear Hobby Lobby alongside a very similar case, Conestoga Wood. The precedents point in two directions, for and against the corporations, and are worth exploring.

Working for the corporations are those cases where the Free Exercise clause of the First Amendment has been applied to groups, not just individuals. Deciding in Hobby Lobby's favor, the Tenth Circuit noted that the statute at issue, the Religious Freedom Restoration Act, did not specifically say that free exercise protections must be applied only to individuals. The Tenth Circuit also pointed to Church of Lakumi Babalu Aye, Inc. v City of Hialeah (1993), which extended free exercise rights to an incorporated church, and to Braunfield v Brown (1961), which tells us that individuals do not shed protections for religious views when engaging in trade. These readings are debatable. Church of Lakumi prevented a city from outlawing a set of practices known to be associated with Santerían worship. It was not a neutral law and it had limited public benefit, so the Court struck it down. And though Braunfield recognizes that free exercise rights exist for those engaged in trade, the majority finds against those Jewish merchants who felt penalized by a Pennsylvania statute barring most forms of commerce on Sundays. In that case the state did not have to work so very hard to convince the Court that a law closing businesses on Sunday was religiously neutral, and did not see a loss of business as a grave violation of religious liberty.

Flawed as the Tenth Circuit's opinion is, the Court will likely find that Hobby Lobby does have free exercise rights, or at least expressive rights amounting to much the same thing. The religious views they espouse will likely be considered protected one way or the other, so that the government is on tenuous ground in requiring them to contradict their professed beliefs. On this point the precedents run fully against the government. Boy Scouts v. Dale (2000) and Hurley (1995) both make clear that, in the Supreme Court's view, an association can engage in exclusion (even otherwise illegal discrimination) if doing so to craft a message (even if the content of that message murky or incoherent, as in Hurley where an LGBT group was barred from participating in a Saint Patrick's Day parade). Citizens United (2010), and its predecessor First National Bank of Boston (1978), make it clear that such associations can be for-profit corporations, which we must now treat as "persons" with respect to First Amendment protections. This cluster of cases infamous to liberals might thus conspire to deal a blow to the ACA and in the same stroke open the door to other odious corporate practices performed in the name of faith.

Or maybe not. We should recall that if Hobby Lobby fails to adhere to the ACA they will face tax penalties and only tax penalties. This raises another line of precedents that work in the government's favor: US v Lee (1982), Swaggart Ministries v Board of Equalization (1990), and Hernandez v Commissioner of Internal Revenue (1989). All of these involve entities that faced tax penalties for failing to adhere to a generally applicable law on religious grounds. And in all cases the Supreme Court found that tax penalties were not a significant burden to a group's enjoyment of religious liberty, and, further, that imposing the charges in question was necessary to maintaining a tax system operating in the public benefit. Indeed, the fact that violations of the ACA result only in tax penalties was central to the Supreme Court's decision on the constitutionality of the individual mandate: because the act does not trigger the full power of the federal government, Chief Justice Roberts then reasoned, it does not impose an undue burden on individuals by requiring them to purchase health insurance (see my discussion of that decision here). The Court could come to a similar conclusion in this case: Hobby Lobby has free exercise or free expression rights, but these are not excessively burdened by the tax penalties that they would have to pay under the ACA. Or, in the language of Braunfield, making a set of religious beliefs more expensive is not equivalent to making them illegal.

If that argument were to carry the day, however, the government would have to show why it is necessary to impinge upon Hobby Lobby's rights at all. The company has agreed to all but four of the twenty contraceptive methods approved by the FDA, objecting to two types of intra-uterine device (IUD) and two "morning-after" pills. The government will have to show, then, that it has a compelling interest in mandating that Hobby Lobby fund health insurance coverage of these four procedures -- even though the ACA already includes exemptions for religious organizations. This is a tough argument to make, and so far the government has made a bit of a hash of it: in their petition for certiorari, they made a case for the health benefits of contraception in general, but not the necessity of the particular services at issue to the public benefit conferred by the ACA. The Court may thus find that the government is not pursuing the least restrictive means of enforcing a law that touches First Amendment rights.

The attention that this case has received thus far tends to focus on the question of whether a for-profit corporation can have religious rights at all. But in legal terms, that's probably the easy part: under current case law, it is almost certain that a closely held corporation found sincerely to claim freedom of religious expression would enjoy some kind of First Amendment protection. The more difficult legal question is whether the Supreme Court will find that the ACA unduly impinges on those rights. That, I think, can go either way, and is likely to produce a conflicted and complex response from the bench that may break down something like the individual mandate decision, to which it is closely related. Lost in all of this will be an exceedingly important point made in the government's petition for certiorari: as a matter of principle female employees must not be burdened, financially or medically, for the religious views of their employers. Justice loudly declares this to be true. But I am not sure that this particular group of justices will agree.