Today I read through the controversial and rather lengthy US Supreme Court’s Hobby Lobby ruling. Reading it is like watching an epic giant robot battle, except you get to learn something as well. Nine judges of the highest court in the land split their votes 5-4, each side providing a substantial argument. Exciting! I’m in no position to provide legal analysis, instead I’ll just comment on parts I found interesting.

This is the first time the court has recognized a for-profit corporation as being covered by the Religious Freedom Restoration Act of 1993 (RFRA), so potentially sets a precedent for future deliberations. The decision hinges on the interpretation of the act covering a “person’s exercise of religion”. The Dictionary Act defines “person” as including corporations, but this definition only applies “unless the context indicates otherwise”. Does the modifier “exercise of religion” provide sufficient context to exclude corporations from the definition? The court was split on this point.

The majority argues:

Congress provided protection for people like the [Hobby Lobby owners] by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings.

This justification is too convenient. What about protection for the thousands of women the leglislation being contested would provide? They also argue that since a corporation can be formed “for any lawful purpose”, the characterization of them as “for-profit” is inaccurate. A religious non-profit is basically the same thing.

Contrast this with the dissenting opinion:

By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation.

They further claim that the distinction between a non-profit and for-profit is straightforward:

Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations.

This highlights the distinct feel of the opposing arguments. The majority opinion is technical and theoretical; the dissent contains a wider array of supporting research and comments to give context to various laws.

In another example, the court contends that the amendment of the RFRA to remove reference to the First Amendment was clear indication that congress intended for the law to be wider reaching than previous precedent. This argument is made just by looking at the text and drawing logical sounding inferences. To rebut this claim, in addition to legal citations, the dissent refers to various senate and congress hearings to establish that the amendment was “designed to restore the compelling interest test for deciding free exercise claims”, concluding that “the legislative history is correspondingly emphatic on RFRA’s aim” and “the Court’s reading is not plausible.”

Futher court reasoning on “compelling interests in public health”, “substantial burden” and “least restrictive means” follow a similar trend: theoretical arguments that are internally consistent, but in my opinion ultimately less convincing than the dissent’s simarly consistent arguments also supported by real world context.

The vote was split along party lines, with five male Catholic Republican appointed judges concurring and four Democrats appointed–three of them women–dissenting. (For balance, three of them Jewish, one Catholic. Where my atheists at!?) What happened next casts a particularly negative light on proceedings.

The Wheaton Injuction

Three days after the above ruling, Wheaton College petitioned the court for an injunction. Wheaton, a religious non-profit, were currently fighting in lower courts to avoid having to submit an EBSA Form 700. This form simply informs both the government and health insurance providers that they will not be providing contraceptive coverage, so that the government is able to cover the gap1. They claimed even this form:

imperimissibly burdens Wheaton’s free exercise of its religion in violation of the [RFRA] on the theory that its filing of a self-certification form will make it complicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects.

In a single page of breezy justification, the court grants the injunction.

The women of the court were not pleased. In a scathing 15 page dissent, they relentlessly dismantle the standing from which the injunction was made, the single reference the court used in support (it actually supports their position), and the probability that the Wheaton claim2 could be even remotely valid.

So while technically there isn’t necessarily a legal connection between the two cases, this injunction provides an exemption to the very alternative the majority was proposing in Hobby Lobby. That seems to undermine their authority somewhat, and overall the whole thing just ends up looking shady.

For further reading, Dorf On Law has a great 10-part(!) post-mortem of the case.

  1. As a non-profit, Wheaton was already allowed to claim an exemption, even before the Hobby Lobby case. 

  2. Without ruling on the case, the court still needs to have an opinion on it when deciding whether the injunction is appropriate.