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Monthly Archives: June 2014


Hobby Lobby: What comes next?

Most of the opposition to the Supreme Court’s ruling in the Hobby Lobby case has focused on the majority’s position that closely held for-profit corporations have religious rights under the 1993 Religious Freedom Restoration Act (RFRA). If a for-profit corporation can claim a religion-based exemption from the Affordable Care Act’s (ACA) requirement that insurance plans cover all FDA-approved contraception, why can’t it claim similar exemptions from anti-discrimination law, or from covering other forms of medical treatment? Justice Samuel Alito’s majority opinion takes great pains to deny that its logic might inspire a flood of RFRA litigation. But is this disclaimer persuasive? More broadly, is Hobby Lobby likely to tangibly transform the relationship between religion and the state? Or will it be an opinion that portends more than it delivers substantially, much as US v. Lopez did with respect to federalism? The answer will depend on how several other questions are addressed:

  1. Can the logic of the Court’s ruling constrain future RFRA claims? In dissent, Justice Ruth Bader Ginsburg asks whether “the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?”

    Alito dismisses this slippery slope on two grounds. The first is that employers had not sought religion-based exemptions to Affordable Care Act requirements other than contraception. Fair enough, but Alito ignores the prospect that employers might have wanted to see how the Hobby Lobby and Conestoga Wood (another for-profit corporate plaintiff) challenges fared before investing resources in litigation. Now that the Court has opened the door, employers might feel emboldened to push what previously would have been considered specious claims.

    The second lies in the requirements of the RFRA, which states that laws meant to apply generally may not “substantially burden” one’s exercise of religion unless they serve a compelling government interest and employ the least restrictive means of furthering that interest. For the Hobby Lobby majority, the dissent’s parade of horribles is far-fetched because for each example, one could readily demonstrate the strength of the government’s interest and the absence of means that do not inhibit religious belief. In contrast, the majority assumed the compelling interest behind the contraceptive mandate (Anthony Kennedy wrote separately to make his recognition of this interest explicit) but held that the existence of a work-around for religious institutions and non-profit corporations demonstrated the availability of less restrictive means. What is unclear is why this logic would preclude exemptions in the situations described by the dissent. If, to use Ginsburg’s words, “let the government pay” constitutes a less restrictive means, then employers will be able to claim religious sanction to off-load all kinds of obligations.

  2. Hobby Lobby objected to being required to cover four types of contraception that prevent fertilized eggs from implanting in the uterus, but it did not object to covering the other sixteen FDA-approved methods covered under the ACA. The majority notes this information as part of its attempt to minimize the scope of the ruling, but there’s nothing in the logic of the opinion to limit its effect this way. Once an employer posits a sincerely held religious belief–and no one on the Court expressed any desire to doubt the sincerity of employers’ expressions of belief–that is substantially burdened by a policy, the stringent RFRA test kicks in. Now that it has won, what will Hobby Lobby and Conestoga Wood do next? The answer will say much about what the Court’s ruling today will ultimately mean.
  3. The majority in Hobby Lobby stated that the RFRA exemption covered only “closely held” corporations, presumably because they, unlike publicly traded companies, are capable of holding a unified position on what the owners’ religious consciences dictate. But the definition of “person” used by the majority opinion makes no distinction based on how ownership is distributed. According to the Dictionary Act (yes, there is an act of Congress with this title), it includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” The majority’s limitation of its holding to closely held corporations, then, rests solely on an empirical expectation. Should a publicly traded corporation assert an RFRA claim, on what basis could a court reject it, given Monday’s ruling?
  4. One less restrictive means proposed by the Court is the one already offered by the Obama administration to religious institutions and non-profits raising religious objections: have insurers or third-party benefit administrators provide contraception coverage at no cost to the employee. The problem here is that this work-around itself is currently being litigated, as dozens of suits have been brought by employers claiming that any involvement in arranging for contraception coverage, even if through a third-party, implicates them in immoral behavior. Does the Court’s mention in Hobby Lobby of the work-around for non-profits signals a lack of sympathy for the plaintiffs’ positions? If not, it would be disingenuous to offer a solution as a reason why the contraception coverage mandate fails to pass the RFRA, only to turn around and reject that very solution soon after. 

For now, what we can say about Hobby Lobby is that with respect to the battle over the Affordable Care Act, the ruling, to use Churchill’s words, “is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” More thoughts to follow….


21st Century Technology at the Supreme Court

On Wednesday, the Supreme Court released two rulings displaying varying degrees of confidence in its understanding of modern technology. In one, it held that police searches of cellphones incident to lawful arrest could not be conducted in the absence of a warrant, barring exigent circumstances. In the other, it ruled that Aereo, a streaming service enabling subscribers to view broadcast TV over the Internet, violated copyright laws because it rebroadcast network programming without paying the retransmission fees that cable providers have to pay. The need to apply old legal principles to new situations featuring emerging technology is hardly a new one, but I would argue that the scope and rapidity of modern technological change have heightened the demands placed on the justices. Wednesday’s cases highlight the ways in which the Court conceives of new technology and how its understanding shapes the scope of each ruling.

In Riley v. California, today’s Fourth Amendment ruling (decided together with U.S. v. Wurie), the justices had little difficulty fitting smartphones into Fourth Amendment doctrine governing searches incidental to lawful arrest. That’s not surprising, given the ubiquity of the devices. The least technologically aware justice, in all likelihood, either owns a smartphone or has played around with someone else’s. As such, the justices know the devices’ immense capabilities and recognize the privacy interests at stake when law enforcement officials seek to obtain evidence contained in one’s phone. It takes little imagination to conceive of smartphones as containing both “papers” and “effects” that the text of the Fourth Amendment protects against unwarranted search and seizure; as a result, a pro-privacy ruling could be supported by committed originalists as well as those favoring a more dynamic interpretative approach.

In contrast, the Aereo case (American Broadcasting Cos. v. Aereo) presented a greater challenge for the Court. Given the demographics of those likeliest to “cut the cord” and eschew cable in favor of newer, nimbler methods of obtaining programming, my hunch is that the justices are unlikely to adopt cutting-edge technology like Aereo. To their credit, they strove mightily during oral argument to get a firmer handle on what exactly Aereo did and the extent to which it was acting like a cable company, only with a magic loophole enabling it to avoid retransmission fees. (The entire business model is built around the existence of this loophole.) The justices did share a distaste for Aereo’s business model; where they differed was on whether they could close the loophole themselves (the majority position) or had to leave to Congress the job of fixing the statute that left open the loophole (the dissent). At the same time, however, there was widespread concern that a ruling against Aereo could jeopardize popular cloud storage services, such as Dropbox and Google Drive, that could also be used to stream copyrighted material. The majority addressed this scenario by taking great pains to state that the ruling against Aereo applies to Aereo only, and that judgments about the legality of other services would not be addressed in advance of legal challenges. Whether the Court can effectively limit the scope of the Aereo ruling in this manner remains an open question, but the desire to set such a limit reflects concern about the unintended consequences of ruling on less familiar technology in a way that might hinder future innovation.