one page case briefing assignment

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Burwell v. Hobby Lobby (2014) Vote: 5 (Alito, Kennedy, Roberts, Scalia, Thomas)

4 (Breyer, Ginsburg, Kagan, Sotomayor)

FACTS

This case involves the interpretation and application of two major statutes: the Religious

Freedom Restoration Act (RFRA) and the Patient Protection and Affordable Care Act (ACA). It

does not directly involve a constitutional issue.

In 1993, Congress passed RFRA by large margins and it was signed into law by President

Clinton. The goal of the statute was to provide religious activities greater protection from

government regulation than the Supreme Court had ruled was required under the First

Amendment. See Employment Division, Department of Human Resources of Ore. v.

Smith (1990). The law stipulated that government could not burden a person’s free exercise of

religion except in furtherance of a compelling government interest and using the least restrictive

means of furthering that interest. The law originally applied to the actions of all state and federal

governments. In City of Boerne v. Flores (1997), the Supreme Court struck down RFRA as it

applied to state and local governments, finding that the federal government had overstepped its

authority under the Fourteenth Amendment to regulate the states and their subdivisions. In

response, Congress amended RFRA by passing the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA). This statutory revision applied the same compelling

interest/least restrictive means standard to a more limited category of government actions. It

defined religious exercise as “any exercise of religion, whether or not compelled by, or central

to, a system of religious belief.” Congress also declared that religious liberty should be protected

to the maximum extent permitted under the statute and the Constitution.

The Affordable Care Act was passed by Congress and signed into law by President

Obama in 2010. The law dramatically altered the nation’s health insurance sector. Among its

provisions, the ACA required employers of 50 or more full-time workers to provide health

insurance that includes “minimal essential coverage.” Under this provision, “preventive care and

screenings” were to be provided at no additional cost to the employee. Congress did not specify

what services would be included in such preventive care; it left that decision to Health Resources

and Service Administration (HRSA), a unit of the Department of Health and Human Services

(HHS). Subsequently, the final regulations required that preventive care include all Food and

Drug Administration (FDA)–approved methods of contraception and sterilization. These

methods encompass those that prevent the fertilization of an egg as well as four methods that

prevent a fertilized egg from attaching to the uterus. The regulations exempt churches,

associations of churches, and religious orders from this requirement.

David and Barbara Green and their three children own the Oklahoma-based Hobby

Lobby arts and crafts store chain, a for-profit business. The company operates 500 stores across

the nation and employs more than 13,000 workers. The family also owns a group of 35 Mardel

Christian bookstores. The Greens are committed Christians and their company’s statement of

purpose pledges to operate in manner consistent with Biblical principles. The company does not

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open its stores on Sundays and does not promote alcohol use. It deploys significant financial

resources to promote Christianity and support Christian missions.

The Greens believe that life begins at conception and that facilitating any contraceptive

methods that operate after that point would violate their religious principles. Of the 20

contraceptive methods approved under the HHS regulations, the Greens oppose only the four that

prevent the implantation of a fertilized egg. Consequently, the Greens and their companies sued

HHS Secretary Sylvia Burwell, claiming that the ACA’s contraception mandate violated RFRA.

They charged that the law burdened their religious exercise by making them choose between

compromising their religious principles and paying substantial government-imposed fees for not

complying with the ACA regulations.

After the Greens were successful in the lower courts, the Supreme Court granted review.

The case was consolidated with Conestoga Wood Specialties Corp. v. Burwell, a similar

challenge brought by a closely held for-profit Pennsylvania company operated by devout

Mennonites Norman and Elizabeth Hahn.

JUSTICE ALITO DELIVERED THE OPINION OF THE COURT:

We must decide in these cases whether the Religious Freedom Restoration Act of 1993

(RFRA) . . . permits the United States Department of Health and Human Services (HHS) to

demand that three closely held corporations provide health-insurance coverage for methods of

contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold

that the regulations that impose this obligation violate RFRA. . . .

In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners

of the companies forfeited all RFRA protection when they decided to organize their businesses

as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA

make it perfectly clear that Congress did not discriminate in this way against men and women

who wish to run their businesses as for-profit corporations in the manner required by their

religious beliefs. . . .

RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of

religion even if the burden results from a rule of general applicability” unless the Government

“demonstrates that application of the burden to the person—(1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of furthering that compelling

governmental interest.” . . . The first question that we must address is whether this provision

applies to regulations that govern the activities of for-profit corporations like Hobby Lobby,

Conestoga, and Mardel. . . .

. . . RFRA itself does not define the term “person.” We therefore look to the Dictionary

Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the

context indicates otherwise.”

Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies,

associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

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Thus, unless there is something about the RFRA context that “indicates otherwise,” the

Dictionary Act provides a quick, clear, and affirmative answer to the question whether the

companies involved in these cases may be heard.

We see nothing in RFRA that suggests a congressional intent to depart from the

Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained

RFRA and free-exercise claims brought by nonprofit corporations, and HHS concedes that a

nonprofit corporation can be a “person” within the meaning of RFRA.

This concession effectively dispatches any argument that the term “person” as used in

RFRA does not reach the closely held corporations involved in these cases. No known

understanding of the term “person” includes some but not all corporations. The term “person”

sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is

limited to natural persons. But no conceivable definition of the term includes natural persons and

nonprofit corporations, but not for-profit corporations. . . .

Because RFRA applies in these cases, we must next ask whether the HHS contraceptive

mandate “substantially burden[s]” the exercise of religion. We have little trouble concluding that

it does.

As we have noted, the Hahns and Greens have a sincere religious belief that life begins at

conception. They therefore object on religious grounds to providing health insurance that covers

methods of birth control that, as HHS acknowledges, may result in the destruction of an embryo.

By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS

mandate demands that they engage in conduct that seriously violates their religious beliefs.

If the Hahns and Greens and their companies do not yield to this demand, the economic

consequences will be severe. If the companies continue to offer group health plans that do not

cover the contraceptives at issue, they will be taxed $100 per day for each affected individual.

For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year;

for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel,

it could be $40,000 per day or about $15 million per year. These sums are surely substantial.

It is true that the plaintiffs could avoid these assessments by dropping insurance coverage

altogether and thus forcing their employees to obtain health insurance on one of the exchanges

established under ACA. But if at least one of their full-time employees were to qualify for a

subsidy on one of the government-run exchanges, this course would also entail substantial

economic consequences. The companies could face penalties of $2,000 per employee each year.

These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for

Conestoga, and $800,000 for Mardel. . . .

In taking the position that the HHS mandate does not impose a substantial burden on the

exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the

connection between what the objecting parties must do (provide health-insurance coverage for

four methods of contraception that may operate after the fertilization of an egg) and the end that

they find to be morally wrong (destruction of an embryo) is simply too attenuated. HHS and the

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dissent note that providing the coverage would not itself result in the destruction of an embryo;

that would occur only if an employee chose to take advantage of the coverage and to use one of

the four methods at issue.

This argument dodges the question that RFRA presents (whether the HHS mandate

imposes a substantial burden on the ability of the objecting parties to conduct business in

accordance with their religious beliefs) and instead addresses a very different question that the

federal courts have no business addressing (whether the religious belief asserted in a RFRA case

is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS

regulations is connected to the destruction of an embryo in a way that is sufficient to make it

immoral for them to provide the coverage. This belief implicates a difficult and important

question of religion and moral philosophy, namely, the circumstances under which it is wrong

for a person to perform an act that is innocent in itself but that has the effect of enabling or

facilitating the commission of an immoral act by another. Arrogating the authority to provide a

binding national answer to this religious and philosophical question, HHS and the principal

dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have

repeatedly refused to take such a step. . . .

. . . [I]n these cases, the Hahns and Greens and their companies sincerely believe that

providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of

the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.

Instead, our “narrow function . . . in this context is to determine” whether the line drawn reflects

“an honest conviction,” and there is no dispute that it does. . . .

Since the HHS contraceptive mandate imposes a substantial burden on the exercise of

religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in

furtherance of a compelling governmental interest; and (2) is the least restrictive means of

furthering that compelling governmental interest.” . . .

We will assume that the interest in guaranteeing cost-free access to the four challenged

contraceptive methods is compelling within the meaning of RFRA, and we will proceed to

consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive

mandate is “the least restrictive means of furthering that compelling governmental interest.”

The least-restrictive-means standard is exceptionally demanding, and it is not satisfied

here. HHS has not shown that it lacks other means of achieving its desired goal without imposing

a substantial burden on the exercise of religion by the objecting parties in these cases.

The most straightforward way of doing this would be for the Government to assume the

cost of providing the four contraceptives at issue to any women who are unable to obtain them

under their health-insurance policies due to their employers’ religious objections. This would

certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown that this is

not a viable alternative. . ..

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HHS contends that RFRA does not permit us to take this option into account because

“RFRA cannot be used to require creation of entirely new programs.” But we see nothing in

RFRA that supports this argument. . . .

In the end, however, we need not rely on the option of a new, government-funded

program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS

itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring

employers to fund contraceptive methods that violate their religious beliefs. . . . HHS has already

established an accommodation for nonprofit organizations with religious objections. Under that

accommodation, the organization can self-certify that it opposes providing coverage for

particular contraceptive services. If the organization makes such a certification, the

organization’s insurance issuer or third-party administrator must “[e]xpressly exclude

contraceptive coverage from the group health insurance coverage provided in connection with

the group health plan” and “[p]rovide separate payments for any contraceptive services required

to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization,

the group health plan, or plan participants or beneficiaries.”

We do not decide today whether an approach of this type complies with RFRA for

purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’

religious belief that providing insurance coverage for the contraceptives at issue here violates

their religion, and it serves HHS’s stated interests equally well.

The principal dissent identifies no reason why this accommodation would fail to protect

the asserted needs of women as effectively as the contraceptive mandate, and there is none. . . .

HHS and the principal dissent argue that a ruling in favor of the objecting parties in these

cases will lead to a flood of religious objections regarding a wide variety of medical procedures

and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to

substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to

the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that

any significant number of employers sought exemption, on religious grounds, from any of

ACA’s coverage requirements other than the contraceptive mandate.

It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no

matter how significantly it impinges on the religious liberties of employers—that would lead to

intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all

employers to provide coverage for any medical procedure allowed by law in the jurisdiction in

question—for instance, third-trimester abortions or assisted suicide. The owners of many closely

held corporations could not in good conscience provide such coverage, and thus HHS would

effectively exclude these people from full participation in the economic life of the Nation. RFRA

was enacted to prevent such an outcome.

In any event, our decision in these cases is concerned solely with the contraceptive

mandate. Our decision should not be understood to hold that an insurance-coverage mandate

must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage

requirements, such as immunizations, may be supported by different interests (for example, the

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need to combat the spread of infectious diseases) and may involve different arguments about the

least restrictive means of providing them.

The principal dissent raises the possibility that discrimination in hiring, for example on

the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision

today provides no such shield. The Government has a compelling interest in providing an equal

opportunity to participate in the workforce without regard to race, and prohibitions on racial

discrimination are precisely tailored to achieve that critical goal. . . .

In its final pages, the principal dissent reveals that its fundamental objection to the claims

of the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal

courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from

generally applicable laws, and the dissent expresses a desire to keep the courts out of this

business. In making this plea, the dissent reiterates a point made forcefully by the Court

in Smith. But Congress, in enacting RFRA, took the position that “the compelling interest test as

set forth in prior Federal court rulings is a workable test for striking sensible balances between

religious liberty and competing prior governmental interests.” The wisdom of Congress’s

judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and

under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.

The contraceptive mandate, as applied to closely held corporations, violates RFRA. . . .

It is so ordered.

JUSTICE GINSBURG, WITH WHOM JUSTICE SOTOMAYOR JOINS, AND WITH

WHOM JUSTICE BREYER AND JUSTICE KAGAN JOIN [EXCEPT AS TO THE

SECTION DEALING WITH WHETHER FOR-PROFIT CORPORATIONS CAN BRING

CLAIMS UNDER THE RELIGIOUS FREEDOM RESTORATION ACT, A QUESTION

WHICH THEY BELIEVE NEED NOT BE ANSWERED IN ORDER TO DECIDE THIS

CASE.]

In a decision of startling breadth, the Court holds that commercial enterprises, including

corporations, along with partnerships and sole proprietorships, can opt out of any law (saving

only tax laws) they judge incompatible with their sincerely held religious beliefs. Compelling

governmental interests in uniform compliance with the law, and disadvantages that religion-

based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less

restrictive alternative.” And such an alternative, the Court suggests, there always will be

whenever . . . the government, i.e., the general public, can pick up the tab.

. . . . In the Court’s view, RFRA demands accommodation of a for-profit corporation’s

religious beliefs no matter the impact that accommodation may have on third parties who do not

share the corporation owners’ religious faith—in these cases, thousands of women employed by

Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded

that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the

Court’s judgment can introduce, I dissent. . . .

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. . . I turn to the Act’s application to the instant lawsuits. That task, in view of the

positions taken by the Court, requires consideration of several questions, each potentially

dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corporations rank among

“person[s]” who “exercise . . . religion”? Assuming that they do, does the contraceptive coverage

requirement “substantially burden” their religious exercise? If so, is the requirement “in

furtherance of a compelling government interest”? And last, does the requirement represent the

least restrictive means for furthering that interest? . . .

RFRA’s compelling interest test, as noted, applies to government actions that

“substantially burden a person’s exercise of religion.” . . . This reference, the Court submits,

incorporates the definition of “person” found in the Dictionary Act, which extends to

“corporations, companies, associations, firms, partnerships, societies, and joint stock companies,

as well as individuals.” The Dictionary Act’s definition, however, controls only where “context”

does not “indicat[e] otherwise.” Here, context does so indicate. RFRA speaks of “a

person’s exercise of religion.” Whether a corporation qualifies as a “person” capable of

exercising religion is an inquiry one cannot answer without reference to the “full body” of pre-

Smith“free-exercise case law.” There is in that case law no support for the notion that free

exercise rights pertain to for-profit corporations.

Until this litigation, no decision of this Court recognized a for-profit corporation’s

qualification for a religious exemption from a generally applicable law, whether under the Free

Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the

exercise of religion is characteristic of natural persons, not artificial legal entities. . . .

. . . Religious organizations exist to foster the interests of persons subscribing to the same

religious faith. Not so of for-profit corporations. Workers who sustain the operations of those

corporations commonly are not drawn from one religious community. Indeed, by law, no

religion-based criterion can restrict the work force of for-profit corporations. The distinction

between a community made up of believers in the same religion and one embracing persons of

diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why

the Court shuts this key difference from sight. . . .

The Court’s determination that RFRA extends to for-profit corporations is bound to have

untoward effects. Although the Court attempts to cabin its language to closely held corporations,

its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will

proliferate, for the Court’s expansive notion of corporate personhood—combined with its other

errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from

regulations they deem offensive to their faith.

Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an

exemption, they must demonstrate that the contraceptive coverage requirement “substantially

burden[s] [their] exercise of religion.” Congress no doubt meant the modifier “substantially” to

carry weight. . . .

The Court barely pauses to inquire whether any burden imposed by the contraceptive

coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f] that

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providing the coverage demanded by the HHS regulations is connected to the destruction of an

embryo in a way that is sufficient to make it immoral for them to provide the coverage.” I agree

with the Court that the Green and Hahn families’ religious convictions regarding contraception

are sincerely held. But those beliefs, however deeply held, do not suffice to sustain a RFRA

claim. . . .

Undertaking the inquiry that the Court forgoes, I would conclude that the connection

between the families’ religious objections and the contraceptive coverage requirement is too

attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or

Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the

companies covered by the requirement to direct money into undifferentiated funds that finance a

wide variety of benefits under comprehensive health plans. Those plans, in order to comply with

the ACA, must offer contraceptive coverage without cost sharing, just as they must cover an

array of other preventive services.

Importantly, the decisions whether to claim benefits under the plans are made not by

Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with

their health care providers. Should an employee of Hobby Lobby or Conestoga share the

religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the

contraceptives in question. But “[n]o individual decision by an employee and her physician—be

it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her

employer’s] decision or action.” It is doubtful that Congress, when it specified that burdens must

be “substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the

woman and her health counselor) standing between the challenged government action and the

religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman

covered under Hobby Lobby’s or Conestoga’s plan . . . will be the woman’s autonomous choice,

informed by the physician she consults.

Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial

burden requirement, the Government has shown that the contraceptive coverage for which the

ACA provides furthers compelling interests in public health and women’s well being. Those

interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To

recapitulate, the mandated contraception coverage enables women to avoid the health problems

unintended pregnancies may visit on them and their children. The coverage helps safeguard the

health of women for whom pregnancy may be hazardous, even life threatening. And the mandate

secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders,

and pelvic pain.

That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved

contraceptives does not lessen these compelling interests. Notably, the corporations exclude

intrauterine devices (IUDs), devices significantly more effective, and significantly more

expensive than other contraceptive methods. Moreover, the Court’s reasoning appears to permit

commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health

plans all forms of contraceptives. . . .

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After assuming the existence of compelling government interests, the Court holds that the

contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the

Government has shown that there is no less restrictive, equally effective means that would both

(1) satisfy the challengers’ religious objections to providing insurance coverage for certain

contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s

contraceptive coverage requirement, to ensure that women employees receive, at no cost to them,

the preventive care needed to safeguard their health and well being. . . .

Then let the government pay (rather than the employees who do not share their

employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court asserts,

“would be for the Government to assume the cost of providing . . . contraceptives . . . to any

women who are unable to obtain them under their health-insurance policies due to their

employers’ religious objections.” . . .

And where is the stopping point to the “let the government pay” alternative? Suppose an

employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying

the minimum wage, or according women equal pay for substantially similar work? Does it rank

as a less restrictive alternative to require the government to provide the money or benefit to

which the employer has a religion-based objection? Because the Court cannot easily answer that

question, it proposes something else: Extension to commercial enterprises of the accommodation

already afforded to nonprofit religion-based organizations. “At a minimum,” according to the

Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious

belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-

based organizations that exist to serve a community of believers, solicitude never before

accorded to commercial enterprises comprising employees of diverse faiths. . . .

Would 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)? According to counsel for Hobby Lobby, “each one of these cases . . .

would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive

alternative test.” Not much help there for the lower courts bound by today’s decision. . . .

There is an overriding interest, I believe, in keeping the courts “out of the business of

evaluating the relative merits of differing religious claims,” or the sincerity with which an

asserted religious belief is held. Indeed, approving some religious claims while deeming others

unworthy of accommodation could be “perceived as favoring one religion over another,” the

very “risk the Establishment Clause was designed to preclude.” The Court, I fear, has ventured

into a minefield by its immoderate reading of RFRA. I would confine religious exemptions under

that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out

that religious purpose,” and not “engaged . . . substantially in the exchange of goods or services

for money beyond nominal amounts.”