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    Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties
    Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties
    Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties
    Ebook118 pages1 hour

    Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties

    By Eugene Volokh

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    Later this month, the Supreme Court will hear arguments in a case—Sebelius v. Hobby Lobby— that has arisen as society tries to reconcile corporate rights with religious liberty.

    Since the Hobby Lobby’s founding, the Green family has managed their company in accordance with their Christian principles. Among the religious tenets guiding them is their moral opposition to contraceptives. However, within the Affordable Care Act’s (ACA) thousands of pages is a requirement that corporations with more than 50 employees must provide coverage in their group health plans for certain medical services (contraceptives being one) or face severe penalties, which forces the Greens to chose between their religious principles or their business. The Greens sued to protect the right to exercise their religion, and now the case will be heard, front and center, in the Supreme Court.

    In this specially created ebook, Eugene Volokh, one of the nation’s foremost First Amendment scholars and founder of the renowned Volokh Conspiracy, has merged previously published work with new content and analysis to offer an exceptionally clear, understandable, and compelling work that provides readers with a comprehensive primer on religious accommodation in the in the context of the ACA’s contraceptive mandate.

    LanguageEnglish
    PublisherCato Institute
    Release dateMar 11, 2014
    ISBN9781939709585
    Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties
    Author

    Eugene Volokh

    Eugene Volokh is Gary T. Schwartz Professor of Law at the UCLA School of Law. He is a member of The American Law Institute, and the founder and coauthor of The Volokh Conspiracy, a leading law professor blog.

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      Book preview

      Sebelius v. Hobby Lobby - Eugene Volokh

      Sebelius v. Hobby Lobby

      Corporate Rights and Religious Liberties

      by

      Eugene Volokh

      Cato Institute Press

      2014

      Hobby-Lobby_0002_001

      Copyright ©2014 the Cato Institute.

      All rights reserved.

      ISBN: 978-1-939709-58-5

      Cover design: Jon Meyers

      Cato Institute

      1000 Massachusetts Ave, N.W.

      Washington, D.C. 20001

      www.cato.org

      A different version of this work originally appeared as a series of posts at The Volokh Conspiracy (www.volokh.com) in December, 2013.

      TABLE OF CONTENTS

      FOREWORD

      1. INTRODUCTION

      2. WHAT IS THE RELIGIOUS FREEDOM RESTORATION ACT?

      3. DO RELIGIOUS EXEMPTION RIGHTS EXTEND TO COMMERCIAL BEHAVIOR?

      4. A BURDEN ON RELIGION?

      5. STRICT SCRUTINY AND THE SLIPPERY SLOPE QUESTION

      6. MUTUAL ACCOMMODATION

      ABOUT THE AUTHOR

      FOREWORD

      By Ilya Shapiro

      Should some people be exempt from laws that generally apply to everyone but infringe on sincerely held religious beliefs? If so, doesn’t that privilege believers over nonbelievers, and indeed pick and choose among which religious tenets to determine which merit accommodation? And does it matter if the religious belief in question relates strictly to worship and prayer or is tied to an otherwise secular mission, such as the provision of education, health care, or social-welfare services? What about commercial activity, and do the legal forms in which that activity is pursued matter?

      These are some of the thorny questions that arise when a pluralistic society tries to reconcile the rule of law with religious liberty. The U.S. Supreme Court will once again address these questions as it takes up the contraceptive-mandate cases. This book provides a timely elucidation of the constitutional and statutory arguments at issue, offering a fine introduction to the treatment of religious liberty under American law.

      Through most of American history, religious objectors only got relief if the law in question explicitly provided it. For example, Quakers were historically exempt from being drafted into the military. In the 1960s, however, the Supreme Court began recognizing constitutionally required exemptions. That experiment only lasted until 1990, when, in a controversial opinion written by Justice Antonin Scalia, the Court ruled that generally applicable laws were constitutionally valid so long as they don’t specifically discriminate against religious people. If religious objectors wanted an exemption from such laws, they would have to seek it from the legislature.

      As it turned out, criticism of the decision came from all ideological sides and interest groups; nobody on any part of the political spectrum was too pleased with the new rule regarding religious (non-)accommodation. Accordingly, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA), which created a presumptive statutory exemption from generally applicable laws, subject to the government’s showing that the burden it imposed on religious believers was the least restrictive means of furthering [a] compelling governmental interest. It may be strange to imagine two decades hence, but RFRA passed unanimously in the House and by a 97-3 vote in the Senate.

      The Supreme Court would strike down RFRA’s application to the states—causing a number of states to pass their own religious-freedom legislation—but upheld it against the federal government in an important 2006 ruling. So that’s where things stood when the Affordable Care Act came along. Given Obamacare’s myriad constitutional and civil rights violations it should be no surprise that it is the cause of the latest legal battle involving government intrusion on religious liberty.

      I speak of course of the contraceptives-mandate cases, of which there are about 40 around the country. Here’s some background on the one that won the race to the Supreme Court: In 1970, David Green founded a picture-frame company in his Oklahoma City garage: Hobby Lobby. Since then, the company has grown into a leader in the arts-and-crafts retail industry, with 588 stores and around 13,000 employees across the United States.

      Ever since Hobby Lobby’s founding, the Green family—David, his wife Barbara, and their three children—has managed the company in accordance with their Christian principles. For example, Hobby Lobby is closed on Sunday, doesn’t sell shot glasses, and often purchases newspaper advertisements suggesting that readers seek Jesus.

      Following in his father’s footsteps, Mart Green also founded a business, a chain of Christian bookstores called Mardel, of which he remains CEO. In the Green family tradition, Mardel is also managed in accordance with religious principles.

      Thanks to Obamacare, however, the Greens are being forced to choose between operating their businesses in direct contravention of their deeply held religious principles or running them into the ground. Among the law’s thousands of pages is a requirement that corporations with more than 50 employees provide coverage in their group health plans for certain medical services or face severe penalties.

      These mandated services, as defined by the Health and Human Services Department’s subsequent regulation, include certain methods of contraception, some of which function by preventing the implantation of a fertilized egg. Among the religious tenets that have guided the Green family’s spiritual lives and business decisions, however, is the belief that life begins when sperm fertilizes an egg. They are morally opposed to contraceptives that prevent implantation and thus destroy life. The Greens believe that being forced to provide health insurance that facilitates the use of such contraceptives is a substantial burden on their right to exercise their religion under the federal RFRA, as well as under the First Amendment’s Free Exercise Clause.

      The Greens sued to protect that right and won in the U.S. Court of Appeals for the Tenth Circuit. Now the case, Sebelius v. Hobby Lobby, is pending in the Supreme Court, along with a similar case out of the Third Circuit, Conestoga Wood Specialties Corp. v. Sebelius, that involves a woodworking company run by a Mennonite family. These cases will determine whether individuals who wish to conduct their lives in accordance with their religious beliefs forfeit the right to do so when they engage in business activities, particularly through the corporate form.

      I should note that the Cato Institute submitted an amicus brief supporting Hobby Lobby and Conestoga. We argue that individuals should be able to order their professional lives according to their religious beliefs, that engaging in business doesn’t demand the surrender of religious freedom, and that there’s nothing inherent in the corporate form that requires denying the owners of a corporation the right to direct their business in a manner that comports with their religion. These are important cases because the corporate form is an essential tool for operating successfully in the complex modern economy and the right to exercise one’s religion—even through one’s business—is an essential right in a free nation. Nobody should have to choose between the two.

      Indeed, it would be odd to say that a for-profit business cannot exercise religious freedom; think of a kosher butcher. It would similarly be strange to think that such a business loses that freedom if it incorporates—as if individual rights change depending on the legal structures through which they’re channeled. After all, the Supreme Court has held (and the government doesn’t dispute) that for-profit businesses and non-profit corporations can have religious-liberty interests. So is the only difference here that it’s a for-profit corporation? But why should the IRS’s treatment of an organization’s revenue stream affect religious liberty one way or another? Regardless of any technical legal arguments, Hobby Lobby boils down to the government’s wanting to force people to do something that’s against their religion; it’s ultimately the Greens—not some inanimate corporate structure—who will either be facilitating the use of objectionable contraceptives or paying the regulatory fines.

      But Americans understand intuitively that the essence of religious freedom is that government can’t willy-nilly force people to do things that violate their religious beliefs. Some may argue that there’s a conflict here between religious freedom and women’s rights, but that’s a false choice—as the president himself likes to call such things. Without the HHS rule, women will still be perfectly free to obtain contraceptives, abortions, and whatever else isn’t against the law. They just won’t be able to force their employer to pay for them.

      In any event, I’m thrilled that Eugene Volokh, one of the nation’s foremost First Amendment scholars and founder of the eponymous Volokh Conspiracy blog (now hosted by the Washington Post), has written this primer on religious accommodation in the context of the contraceptive mandate. I don’t think there’s anyone better-suited to explaining this sometimes convoluted and often counterintuitive area of law for a general audience.

      And while the focus of the Hobby Lobby case is the intersection of corporate rights and religious liberties, there’s an even bigger issue here. This is just the latest example of the difficulties in turning health care—or increasing parts of our economy more broadly—over to the government. As my colleague Roger Pilon

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