July 08, 2014
A response to Kaveny on the Hobby Lobby case
Cathy Kaveny has an essay in Commonweal called "A Minefield" which discusses the Court's recent Hobby Lobby decision. I agree with Cathy that "in a pluralistic society, the religious freedom of one party needs to be balanced against the rights and the legitimate expectations of others." (It seems to me that both RFRA and Dignitatis Humanae say as much.) I also agree with her that RFRA-type accommodation regimes tend to invite a very difficult (and, even after Hobby Lobby, not resolved) question, i.e., how should a court determine whether a claimant's sincerely held religious belief is burdened and whether that burden is, for legal purposes, "substantial"?
In several places, though, I disagree with the essay. . . .First, I think it is an overstatement to stay that "[w]hat the Court has done in the Hobby Lobby case is transform the Religious Freedom and Restoration Act—a statute enacted by Congress to counteract a bad Supreme Court decision that harmed powerless religious minorities—into a tool for powerful minorities to resist what they believe to be dangerous social and political change." RFRA continues, after Hobby Lobby, to be what it has long been and operated as, that is, a statutory regime that protects people with uncommon religious beliefs from being overlooked or neglected in the political process. (And, at least in this situation, "people" includes at least some corporations. As Judge John Noonan once wrote, in a different but instructive context: "The First Amendment does not authorize Congress to pick and choose the persons or the entities or the organizational forms that are free to exercise their religion. All persons-and under our Constitution all corporations are persons-are free. A statute cannot subtract from their freedom.” E.E.O.C. v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 623 (9th Cir. 1988) (Noonan, J, dissenting)). That the statute also provides such protection to some larger and more "powerful" persons or entities -- whose religious commitments are not widely shared and so are vulnerable to being neglected in the political process -- does not mean that the statute has been "transformed" or misapplied. The mandate itself and the highly non-transparent and removed-from-democracy way by which it came about are arguably more novel and strange than the idea that a corporation, or a powerful entity, enjoys (some) legal and constitutional protections.
Second, in the context of a discussion of the run-up to RFRA and of its purposes, Cathy writes:
Ignoring the purposes of the legislation, not to mention its legislative history and subsequent application, Alito argues that “nothing in the text of RFRA . . .was meant to be tied to this Court’s pre-Smith interpretation of the Amendment.” That is a highly selective, if not deceptive interpretation of the statute.
I do not believe it is accurate to say that Justice Alito "ignor[ed]" these issues -- he discusses them at length, in a variety of places -- even if he draws different conclusions from them than some have. (This piece, by Doug Laycock, provides what I think is a powerful response to the criticism that the Court got RFRA's history and purpose wrong.) More specifically, when Justice Alito says that RFRA was not meant to be "tied to [the] Court's pre-Smith interpretation of the Amendment" he is responding to the argument (slip op. p. 25) that "RFRA did no more than codify th[e] Court's pre-Smith Free Exercise precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protections."
He is right. RFRA was (as Cathy says) designed to “to restore the compelling interest test as set forth in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972)" but this does not mean that the Court's pre-Smith Free Exercise Clause cases -- that is, its particular (purported) applications of that test -- somehow set the outer bounds for RFRA's application. ("[T]he results would be absurd," as Justice Alito writes, "if RFRA merely restored this Court's pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith.")
As Justice Alito notes, the RFRA amendment through RLUIPA says that the "exercise of religion" "shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution." The "exercise of religion" had not been so "construed" in Free Exercise cases by the Court during the pre-Smith years, and so Congress, in response, invited (directed, actually) the Court to so construe it for RFRA and RLUIPA purposes. As I see it, to rely on this amendment is not, as Cathy suggests, to "expansively interpret its spirit" but rather to follow the relevant statutory text's directive.
Third, Cathy states that "the ruling recognizes that corporations have free exercise rights, it identifies those rights solely with the owners of the corporation. The legitimate interests of other corporate stakeholders, particularly the employees, who may not share their employer’s religious views, evidently have no standing. In this instance, it seems that more money buys you more religious freedom—and more freedom to infringe on the choices of others."
Although it is true, and unremarkable, that all employers "infringe on the choices of others" (i.e., their employees) to some extent, it is not the case that Hobby Lobby asserted a religious-freedom right to infringe on the religious-freedom rights (or the privacy, or the health-care decisions, or the decisions about sexuality and reproduction) of its employees. Hobby Lobby won only because the Court determined -- and, on this point, the determination seems unassailable -- that there are other, less burdensome ways for the government to achieve its goal of providing a particular array of contraceptive methods, without cost-sharing, to women.
That the Court's focus was on the religious-liberty claims of Hobby Lobby, etc. -- that is, of the plaintiffs in the case -- does not seem surprising or objectionable. RFRA is a protection against burdens imposed on religious exercise by government action and the challenged action -- that is, the mandate -- does not impose requirements on employees. The fact that many employees do not share the religious beliefs at issue in the litigation does not mean that their religious exercise is burdened by the application of the statute to protect the religious exercise of those whose beliefs are burdened. And, the interests of the employees and "other corporate stakeholders" are taken into account, and do have "standing," because -- under RFRA -- those interests are taken into account in the balancing that the statute (like many other statutes and constitutional doctriners) invites. In this case, the Court did not ignore or discount these interests but instead determined that, because they could be protected and vindicated without burdening the religious exercise of a "person" whom RFRA protects, they should be.
Finally, Cathy concludes by suggesting that the Court engaged in "judicial activism" and "legislating from the bench" and so the "the conservative majority has . . . become what it has so long hated." I tend to think that, whether the term is used by "liberals" or "conservatives", the term "judicial activism" is almost always unilluminating and functions simply as a label one attaches to decisions one dislikes. In any event, what distinguishes the Court's application of RFRA (or of any other statute that calls for judicial determinations about "reasonableness" or interest-balancing) is that the Court is applying a congressionally (and, so, kind-of-democratically) supplied standard. What's more, the Court's application is revisable and correctable. The "legislating from the bench" that conservatives have always "hated" is not the application of statutes that call for judgment calls but the (very difficult to correct and not-very-democratic) announcements that particular legislative policy choices regarding controversial and contested matters are off the table because of a controversial and contested interpretation of the Constitution's more general terms and phrases.