Jul 2, 2014

The Hobby Lobby ruling is actually pretty reasonable

The politics of the Supreme Court's decision in the Hobby Lobby case are explosive. Birth control! Religious liberty! Health care! Women's rights/bodies/health! These are things said with exclamation points in American culture today.

The legal issues in the Hobby Lobby decision are not explosive.

Knowledgable voices who prefer explanations over arguments are saying that the Supreme Court's ruling in the Hobby Lobby case is not radical, not transformative. Religious liberty has not been dramatically changed. Corporations' powers have not been dramatically expanded. Women's access to birth control will probably be the same as it was, or maybe eventually better. The ruling is sharply limited, actually. Against the advocates on all sides of this issue, careful legal observers are saying the decision is more subtle, more measured, than is being claimed.

David Masci, writing for Pew, says the ruling expands religious liberty, but not by much. The court took pains to prevent over extension of the ruling.

Masci writes:
The Hobby Lobby decision does not represent a radical change in religious-liberty law -- even as it applies to for-profit businesses. The fact that the ruling is limited to closely held companies, and that the majority specifically warns against the future use of religious-liberty claims by businesses to justify discrimination, means that the decision could have a limited impact in future cases involving businesses and questions of religious rights.
At Religious Clause, Howard Friedman writes that this decision actually avoids the more interesting and more controversial question that was at the heart of the case.

He says,
One of the most widely discussed questions raised by Hobby Lobby has been: Can corporations exercise religion? Justice Alito avoids many of the difficulties posed by this question through adopting the 'nexus of contracts' view of corporations put forward by 'law and economics' scholars during the past 40 years . . . This approach avoids both the question of whether an 'artificial person' can exercise religion, and whether traditional 'piercing-the-corporate-veil' notions need to be invoked.
Friedman quotes Alito's ruling, which says that corporations are people only in the sense that they are organizations made up of and representing people. Rights have to be granted to those corporations when and where "the purpose is to protect the rights of these people" who formed the corporation.

The legal precedent for this was established in the 19th century. The decision about corporations' religious rights is not dramatic. The court, if anything, chose the least dramatic choice on this issue.

It should be noted that, in an important way, this case was not about whether or not corporations had religious rights. The lawyers representing the government always said that some corporations do. Churches are corporations. There are religious non-profits, which everyone agrees are religious. It has never been the case that only individuals have religious rights and organized groups of individuals do not. Hobby Lobby wanted to argue that some for-profit corporations can be religious too, in the same way that some non-profits are.

If there was a serious legal argument for why corporations can't be religious and for-profit, I am unaware of it. It has never been clear to me what the argument is for that line.

The actual decision was pretty circumspect, though. It was only this:
  • The government does have an interest in providing health insurance plans that cover birth control to women who want it.
  • Some individuals who own corporations have the right to their religious objections to some (or all) forms of birth control.
  • Therefore, the easiest way to provide birth control is not through employer-provided health insurance.
Politically, there is plenty of fuel there for a number of fires. From another perspective, the Hobby Lobby ruling is pretty reasonable.

This is not a time of moderation and consensus, but if it were, one could imagine some consensus on these points.

Lyle Denniston, writing for SCOTUSblog, points out the most central argument for the majority decision was that there's an easy fix to the Hobby Lobby mess.

He writes,
as both Justice Alito and Justice Kennedy pointed out, the government has fashioned an alternative way to assure such coverage. Rather than making the owners pay for the coverage to which they object for religious reasons, the employee benefit plan itself -- that is, the insurance company or the internal plan administrator -- has to take on the obligation, and provide the coverage to the female workers, free of charge. 
Either this 'middle man' has to absorb the cost itself (the owners can't be required to put up the money), or it will get a government subsidy to help cover the cost.
Is that enough of an accommodation of the owners' religious objection? The two key opinions on Monday seemed, literally speaking, to say it was.
Masci makes the same point:
In its decision, the high court agreed with Hobby Lobby. . . ruling that 'closely held' corporations should be accorded religious-liberty rights and are covered by [the Religious Freedom Restoration Act]. The court said that although it was willing to concede, for the sake of argument, that the federal government has a compelling interest in providing women with free contraception, the government failed to prove that it can only advance this interest in a way that burdens companies' religious-liberty rights.

Indeed, the court said, the government could easily accommodate these and similar businesses and still provide these companies' female employees with free contraception by simply extending to for-profit businesses the alternative it has offered to religiously affiliated nonprofit employers such as religious hospitals, schools and charities. This alternative allows employers to opt out of contraception coverage and requires health insurers in these cases to offer female employees free contraception through a separate policy.
Friedman notes the politics of this decision may end up being exactly backwards. Conservatives opposed to government health care may, in winning the Hobby Lobby case, have ended up expanding the government's role in American health care. Liberals, in losing, may end up getting more of what they wanted.

Justice Alito's 'least restrictive means'  discussion creates some of the most important surprises, and may lead those who supported Hobby Lobby's position to recall the adage: 'be careful what you wish for.' Jutice Alito makes two points. First, he argues that the 'most straightforward' less restrictive alternative would be for the government to assume the cost of furnishing contraceptive coverage. The logical extension of this argument seems to be that if numerous other religious objections to providing employer coverage arise, the best alternative may be a single-payer government-run system.
It remains to be seen whether that will happen, and how the health care system will be tweaked now that some closely held corporations can apply for exemptions from some health care rules. One can be sure, though, that whatever happens, the politics will be explosive. There will be lots of outrage. And lots and lots of misinformation.