The culture wars returned to the Supreme Court in May-June 2014, as the Justices closed out their term with rulings that upheld the rights of religious conservatives to further impose their values on everyone else. One case allowed a town board in upstate New York to open its meetings with Christian prayer. The other allowed Hobby Lobby and other corporations to deny their employees contraceptive insurance coverage in the name of religious freedom.
Legalizing Town Board Prayer
The town prayer case, Town of Greece v. Galloway, applied the Establishment Clause of the First Amendment, which reads, “Congress shall make no law respecting an establishment of religion.” The Supreme Court has long since interpreted the Clause to also prevent the states and political subdivisions, like town and counties, from creating an establishment of religion. The Court has further said that the Establishment Clause does not simply prohibit an official government religion. Although the legal standards governing the Clause have grown murky over the years, the Court said in 1971 that the government may neither advance nor inhibit religious exercise. In 1989, the Court said, “Whatever else the Establishment Clause may mean [,]…[it] means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).” Three years later, the Court held that the “government may not coerce anyone to support or participate in religion or its exercise.”
As many Establishment Clause cases are decided by a divided Court, what constitutes an establishment of religion is in the eye of the beholder. The Town of Greece ruling was no different. In deciding to open its meetings with prayer and the town board advanced a neutral prayer policy. But in practice, since nearly all of the congregations in town were Christian, from 1999 through 2007, nearly all the prayers were Christian as well. This meant that non-Christian town residents who attended public meetings had to sit through these prayers. Each closely-divided Supreme Court ruling represents a tale of two cases. In the Town of Greece case, the majority—all conservatives appointed by Republican presidents—framed the issue as follows: “The Court’s inquiry…must be to determine whether the prayer practice in the Town of Greece fits within the tradition long followed in Congress and the state legislatures.” The majority noted that, in 1983, the Court Marsh v. Chambers allowed the State of Nebraska to open state legislative sessions with prayer from a chaplain paid from state funds. Of course, the Establishment Clause says nothing about history or tradition. In any event, as Justice Anthony Kennedy noted, “The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice.”
Framing the issue that way, the conservative majority made the Town of Greece outcome look easy. The Court ruled that, while “[a] number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a “spirit of cooperation” among town leaders.” Of course, the Court’s 1983 ruling in Marsh laid the groundwork in upholding public prayer in the Town of Greece. If prayer at the start of state legislative sessions is constitutional, then so is prayer at the start of town board meetings.
The four liberals in the Court may find themselves on the losing side of most cases, but they still attack the majority’s reasoning in forceful terms. In this case, Justices Stephen Breyer and Elena Kagan highlighted what the majority de-emphasized or ignored. Justice Breyer noted that while Greece is a predominantly Christian town, it is also home to a Buddhist temple and several Jewish synagogues are situated just outside its borders. “Yet during the more than 120 monthly meetings at which prayers were delivered during the record period (from 1999 to 2010), only four prayers were delivered by non-Christians. And all of these occurred in 2008, shortly after the plaintiffs began complaining about the town’s Christian prayer practice and nearly a decade after that practice had commenced.” In addition, “the town made no significant effort to inform the area’s non-Christian houses of worship about the possibility of delivering an opening prayer.”
Justice Kagan noted that, while she agreed with the Court’s ruling in Marsh, this case is different. Not only does the town board vote on measures and address general municipal matters, “[t]he Board’s meetings are also occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters. That feature calls for Board members to exercise special care to ensure that the prayers offered are inclusive—that they respect each and every member of the community as an equal citizen. But the Board, and the clergy members it selected, made no such effort. Instead, the prayers given in Greece, addressed directly to the Town’s citizenry, were more sectarian, and less inclusive, than anything this Court sustained in Marsh.”
Further driving home her point, Justice Kagan—a former dean of Harvard Law School—employed a law professor’s hypothetical to explain how this ruling can apply more broadly, using an actual prayer that the Town of Greece had entertained:
“It’s election day, and you head over to your local polling place to vote. As you and others wait to give your names and receive your ballots, an election official asks everyone there to join him in prayer. He says: ‘We pray this [day] for the guidance of the Holy Spirit as [we vote]…. Let’s just say the Our Father together. Our Father, who art in Heaven, hallowed be thy name; thy Kingdom come, thy will be done, on earth as it is in heaven….And after he concludes, he makes the sign of the cross, and appears to wait expectantly for you and the other prospective voters to do so too.”
Like any ruling that interprets the Establishment Clause in the context of public prayer, the Town of Greece decision attracted public attention. But the media overlooked what the two most conservative Justices on the Court wrote in support of Justice Kennedy’s result. Justice Clarence Thomas reiterated his view that the Establishment Clause cannot apply to the states, which means that, in his view, the Constitution does not restrict how states treat religion. This means that the Constitution does not prevent the State of New York from adopting an official religion. In his view, the Establishment Clause simply prohibits the federal government from interfering with states that want to establish their own religion. Justice Antonin Scalia agreed with this radical proposition.
The Hobby Lobby Ruling
The Town of Greece ruling foreshadowed what the Supreme Court had in store on the last day of the term. In Burwell v. Hobby Lobby, the 5-4 conservative majority held that a for-profit business may invoke religious objections to providing its employees with health insurance that includes certain forms of contraception. This ruling limited the scope of the Affordable Care Act, also known as Obamacare. Again, this ruling was met with an angry dissent from the liberal Justices, whose only hope is that their outrages provoke Congress or even future members of the Court to overturn or move away from the majority’s reasoning.
Hobby Lobby did not prevail under the Constitution. Rather, it sued under the Religious Freedom Restoration Act of 1993. RFRA provides for religious protections that the Supreme Court rejected in 1990, ruling in Employment Division v. Smith that the State of Oregon could deny unemployment benefits to Native Americans who lost their jobs after ingesting peyote for religious reasons. Under the conservative narrative that dominates American discourse, you are forgiven for assuming that the liberal Justices crafted that result over a conservative dissent. The opposite is true. In ruling for the majority, Justice Scalia set aside decades of precedent in holding that religious minorities cannot invoke the Free Exercise Clause (which protects religious practices from government inference) to challenge laws that apply to everyone but have an incidental burden on religious rituals. Congress responded quickly to this pro-government ruling by enacting RFRA, which revived the balancing test that Justice Scalia had abandoned in the Smith ruling.
Under RFRA, persons may challenge any law or policy that substantially infringes upon a sincerely-held religious belief or practice unless the government can advance a compelling interest in support of the measure and that law or regulation is the least-restrictive means of furthering the government objective. In other words, RFRA allows the government to infringe on a religious practice only for a compelling and narrowly-tailored reason. In practice, this standard would allow the government to prohibit religiously-motivated killings. It would probably prohibit the government from restricting religiously-motivated peyote use. Hobby Lobby challenged the ACA’s requirement that for-profit businesses must provide health insurance that includes “preventative and screenings” for women. Under Department of Health and Human Services regulations, that health care must include contraception, including that which “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.” Hobby Lobby—and another Christian-owned business, Conestoga Wood Specialties—objected to these forms of birth control as comparable to abortions. In a ruling that affects thousands of their employees, these businesses prevailed in the Supreme Court, broadening the scope of RFRA and making it easier for religious conservatives to seek exemptions under the ACA.
The Hobby Lobby ruling has three primary components. First, while RFRA explicitly says that government may not “substantially burden a person’s exercise of religion,” Justice Samuel Alito held that the statute also protects for-profit corporations. He opened the discussion by stating, “RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required. Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests?” Using language that could have been lifted from Mitt Romney’s presidential campaign, the majority concluded that Congress “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. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
The majority further said that the ACA had substantially infringed on the plaintiffs’ religious principles. Deferring to the religious viewpoints of the families that operate Hobby Lobby and Conestoga Wood Specialties, the majority concluded that, “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.” Justice Alito declined to second-guess the connection between providing employee health insurance and corporate religious principles, stating, “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.”
Wrapping up its analysis, the majority said that, even if the government has a compelling reason to ensure that women receive contraceptive health insurance coverage, there are other ways for the government to reach that objective without violating anyone’s religious objections. The government can provide that coverage itself just as it does for non-profit religious organizations who can opt-out of these coverage requirements under the ACA.
In dissent, Justice Ruth Bader Ginsburg tore apart Justice Alito’s analysis. A former constitutional litigator who pioneered equal protection rights for women, Justice Ginsburg noted that the Court said in 1992 that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Despite this principle, the majority opinion ignores the womens’ rights angle. The corporate rights angle predominates. Yet, as Justice Ginsburg noted, “[u]ntil 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.
As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Even if Congress had reason to exempt religious non-profits from ACA’s contraception mandate, that logic does not apply to for-profit corporations, whose employees “commonly are not drawn from one religious community.”
Justice Ginsburg further noted the attenuated link between Hobby Lobby’s religious objections to the contraceptive coverage. The ACA only requires that for-profit entities provide insurance coverage. Whether female employees seek out the contraception is their choice. “No individual decision by an employee and her physician—be it to use contraception, threat an infection, or to have a hip replaced—is in any meaningful sense her employer’s decision or action.”
In her dissent, Justice Ginsburg cautioned that the Courts’ ruling is “of startling breadth” and that the exemption upheld by the majority could have unforeseen consequences. “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)?”
Hobby Lobby’s Possible Consequences
The can of worms that Justice Ginsburg hinted at spilled open a few days later, when the conservative majority issued a brief ruling sought by Wheaton College, a Christian entity that objected to the ACA requirement that allows nonprofit religious entities to secure an exemption from the contraception coverage by sending an objection form to the government. While the Court simply issued a temporary injunction and not a ruling on the merits, the order shows that the Court is willing to entertain such an argument and that religious organizations that are looking for a way out of the contraception coverage will not shy away from creative exemptions. Wheaton College’s objection was simply that filling out the form that advises the government of its sincerely-held religious objection in itself substantially burdens its religious practices. As Justice Sonia Sotomayor noted in her dissent from the majority’s temporary order, “Wheaton…asserts that the exemption itself impermissibly burdens Wheaton’s free exercise of its religion in violation of the Religious Freedom Restoration Act of 1993 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.”
Justice Sotomayor filed her dissent on behalf of the two other female Justices. She noted the hypocrisy of the majority’s actions. The Court said only a few days earlier that RFRA authorized an accommodation for religious organizations who could notify the government of its contraception objections, thereby obligating the government to provide for that coverage. Now the Court is suggesting that completing a form that memorializes that objection violates a sincerely-held religious belief. Justice Sotomayor wrote, “[t]hose who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.”
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