01 July 2014

Hobby Lobby Explicated

For some reason, people's inability to understand the Hobby Lobby case is bothering me more than people's general inability to understand SCOTUS decisions, so I thought I'd take a crack at setting out the court's reasoning.

1. In the 90's, two Native Americans were fired from their job because they tested positive for the use of peyote.

2. They applied for unemployment insurance and were denied because they were fired for good cause, having tested positive for using peyote.

3. The Native Americans argued that denying them unemployment insurance burdened their exercise of their religion, which involved using peyote, and was thus unconstitutional under the First Amendment.

4. The Supreme Court held that, if a law is generally applicable to everyone -- in context, if the law is not about religion -- then the Constitution does not give people any exemption even if that law burdens their religious beliefs. (That is, the Native Americans have to choose between their religious practice of using peyote and getting unemployment insurance.)

5. Congress didn't like that result, and so it passed a law (the Religious Freedom Restoration Act (RFRA)) that said that there is an exception to any law of general application if it burdens a person's religious beliefs, unless the interest served by the law is compelling and imposes the least possible burden consistent with that compelling interest. "Person" is not defined in RFRA, but there's another statute that says, among other things, that whenever the word "person" is used in federal law, it includes corporations. RFRA also says that Congress can include a provision in any future statute saying that it is not subject to RFRA.

6. 20 years later, Congress passed health care reform (HCR). There is no provision in HCR saying that RFRA doesn't apply.

7. After HCR passed, the Department of Health and Human Services announced a regulation that requires all employer provided health insurance plans to cover the cost of 20 specific contraceptives.

8. The owners of Hobby Lobby say that they are devout Christians and have a religious objection to providing health insurance that covers 4 of the 20 required contraceptives because those 4 could stop an embryo from implanting in the mother's womb and thus result in the death of the embryo, which they consider murder.

9. Hobby Lobby claimed that HHS' regulation burdened its owners' religious beliefs by involving them (in their own opinion) in murder if they had to provide insurance covering the 4 specific contraceptives.

10. The government claimed, first, that RFRA doesn't apply to for-profit corporations because they can't have religious beliefs and, second, that its regulation isn't a substantial burden.

11. It is clear that RFRA applies to corporations and the government didn't argue otherwise. Among other things, churches are corporations and everyone agreed that a church could sue under RFRA.

12. But can for-profit corporations have a religious belief? The government argued no. The Court held, yes. It had previously decided religious freedom cases brought by corporations; religious freedom cases brought by businesses, and religious freedom cases brought by business corporations (a Kosher butcher sued Massachusetts, arguing that it should not be subject to Massachusetts' Sunday closing law because it also had to be closed on Saturday, the Jewish Sabbath).

13. The Court assumed that the government's interest in the HHS regulations was compelling because it held that it clearly wasn't the least restrictive regulation possible. HHS had exempted non-profit corporations from its regulation and the Court held that the least restrictive regulation possible would have exempted Hobby Lobby too.


erp said...

Thanks David. Makes sense now.

Paul Jaminet said...

The problem was in the earlier ruling. "Religion" in the Constitution should have been interpreted as the Christian religion, or Judeo-Christian religion; so one purpose of the Constitution was to leave Americans free to practice Judeo-Christian religions. If you treat any religion as being protected, and require that all persons and religions must have equal liberty, then a religion of murder and mayhem would have to be protected, and all government would be impossible. You are immediately led into contradictions. And that's where they've gone. Rather than ruling government unconstitutional, they are basically saying there is no right to religious free exercise except what Congress provides for in legislation like RFRA. That destroys the first amendment.

erp said...

Paul, I've heard that argument before and also the response which is there are already laws and precedence against murder and mayhem, so any religion which promotes that would be breaking existing laws and they couldn't use their religious views as a defense.

The "law" forcing private citizens to provide free birth control to their employees doesn't IMO fall into that same category as laws going back into recorded history.

Paul Jaminet said...

Hi erp,

I think the peyote-smoking case, or let's say an Incan religious child sacrifice, is a good counter-example. Honor killings in some Islamic cultures. Genital mutilation in Islamic cultures. Voodoo. Lots of things could be called "religious". We clearly don't want to endorse things or permit them just because someone somewhere claims that they are part of a "religion." I don't think the original meaning of "religion" would have included those -- Christians of two hundred years ago would have called those superstition, or idolatry, not genuine religions.

"Existing laws" are meant to be under the Constitution and subject to it. I think we should allow for the possibility that medieval laws infringing upon free exercise of Judeo-Christianity were meant to be constitutionally prohibited, so it is not just innovative laws that were to be banned, but all laws blocking Judeo-Christian practice.

The presumption, in other words, was that Judeo-Christian precepts were at a minimum supportive of or neutral towards civilized values, and therefore there could never be a good reason to outlaw behavior in accord with those precepts; but there might be good grounds to outlaw other sorts of behaviors.

erp said...

I've always liked this story
involving Hindu priests complaining to him (Charles James Napier) about the prohibition of Sati by British authorities. This was the custom of burning a widow alive on the funeral pyre of her husband. As first recounted by his brother William, he replied:

"Be it so. This burning of widows is your custom; prepare the funeral pile. But my nation has also a custom. When men burn women alive we hang them, and confiscate all their property. My carpenters shall therefore erect gibbets on which to hang all concerned when the widow is consumed. Let us all act according to national customs."

Why can't we have people like that in charge now? :-)

I don't know anything about peyote, but if it interferes with an employee's ability to do his/her job, then the employer is right to ban its use in the workplace. No different than alcohol and now (God help us) marijuana.

Anonymous said...


That objection is easily handled by considering consent - your cases all involve non-consenting relationships. Not preventing those will involve (in effect) a violation of at least one party's religious beliefs.

Paul Jaminet said...


The peyote smoking was consensual. In Islamic countries, many girls don't dare resist their families on genital mutilation; they may feel it is a normal part of their culture or identity. "Consent" is a good standard but it isn't the standard taken by western legal tradition. Whereas the Anglo-Christian common law / scriptural tradition was the basis for our law. If you take an originalist view of the Constitution, that's the meaning you'd have to embrace.

Anonymous said...


Um, yes, and I don't see a problem with that being permitted under this decision. That was, after all, the point of passing the law.

If you're going to go back to tradition, you should support that as well because banning such things is a modern invention, and not something the Founders did.

Also, anything you describe as something some one "does not dare do" is not in my view consensual. It's also a bit different for children for whom consent is handled differently than for adults.

I won't claim my view is a panacea, but I think it's a good guide that avoids the pathologies you bring up.

Paul Jaminet said...


The point I was making was one of constitutional law: how is "religion" to be construed, so that the free exercise of religion clause has meaning, and the equal protection clause also has meaning, without descending into contradictions.

In Christianity, everyone is obliged to follow his own conscience in regard to who he associates with and who he doesn't associate with. That is how Christians become the "salt of the earth," ie the preservers of decency, by withholding cooperation from wickedness. It therefore presumes a polity which permits freedom of association and disassociation. It is thus libertarian. Since everyone has the right to disassociate, save perhaps in a few exceptional circumstances, they cannot be coerced. This was the medieval understanding of the political implications of Christianity that was preserved in America in the Constitution and the English tradition of liberty even after Christian faith began to dissipate.

I am saying that the original and natural meaning of the Constitution, including its post-Civil War amendments, was that all persons in America are free to exercise the Christian religion, and thus are free to associate or disassociate with whom they choose; and this freedom extends equally to all, not just practicing Christians. Because others are free to act as Christians, they are free, period.

I agree with what you are saying: that a law that outlaws coercion and permits voluntary non-coercive activities, would be workable, provide equal protection to all, and compatible with the free exercise of the Christian religion.

But I don't think the framers of the Constitution intended to be quite so strong. They would have permitted laws against certain voluntary but non-Christian activities, such as lewdness or obscenity or slander.

Regardless, I think it should be clear that if you interpret "religion" as any arbitrary set of beliefs, and if you understand the equal protection clause to mean that if one person can practice his religion every other must be allowed to practice his, then you are interpreting the Constitution to advocate anarchy and lawlessness. It would make government impossible and lead to universal conflict.

Yet this seems to be the view that the Supreme Court has adopted. Their solution is to ignore the free exercise clause and assert that the only rights Christians have to follow their conscience are endowed upon them by Congress in legislation such as RFRA. This neuters the free exercise clause.