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Symposium: Hobby Lobby and Conestoga: The most difficult-to-answer question

The following contribution to our contraceptive mandate symposium comes from John Bursch, a partner at Warner, Norcross and Judd. From February 2011 to December 2013 Mr. Bursch served as Michigan’s Solicitor General. 

“[A]round the world[,] freedom of religion is under threat. . . .  We see governments engaging in discrimination . . . against the faithful. . . .  We, therefore, believe in the inherent dignity of every human being—dignity that no earthly power can take away.  And central to that dignity is freedom of religion—the right of every person to practice their faith how they choose, . . . and to do this free from persecution and fear. . . .  [H]istory shows that nations that uphold the rights of their people—including the freedom of religion—are ultimately more just and more peaceful and more successful.  Nations that do not uphold these rights sow the bitter seeds of instability and violence . . . .”

Powerful words.  They could have been spoken by the lawyers representing Hobby Lobby or Conestoga in this important pair of cases involving religious liberty.  Or they could have come from any one of these parties’ many dozens of amici supporters.  But they didn’t.  They came from President Obama’s remarks to those assembled at the National Prayer Breakfast on February 6, 2014.  Yet the administration insists that it does not violate freedom of religion to force religiously motivated business owners to provide abortifacients to their employees, the so-called HHS Mandate.  These are difficult positions to reconcile, though no less difficult than the challenge the government faces defending its position in this litigation.

The United States did not fare well before the nation’s highest Court in its most recent case involving religious liberty.  In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity, a Lutheran school defended its decision to terminate a teacher by invoking the teacher’s violation of church doctrine.  The school argued that because its decision was an internal church matter, the teacher could not challenge her termination under federal employment laws, the so-called “ministerial exception.”  The federal government insisted that the teacher could proceed with her lawsuit, arguing that when it comes to federal employment laws, religious organizations must be treated just like any other employer.  The Supreme Court rejected the government’s view by a vote of nine to zero, describing the government’s position as “hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.”

Now, in conjunction with its implementation of the Affordable Care Act, the government has promulgated the HHS Mandate, which requires all employers to provide their employees with health insurance that covers abortifacients – substances that induce abortion by terminating the life of a child that is still in utero.  If an employer declines, it faces extraordinary fines, those of a magnitude likely to bankrupt nearly any business.  The Hobby Lobby and Conestoga cases challenge the Mandate and raise essentially two legal questions:  (1) can corporations engage in religious exercise; and (2) if so, does the Mandate violate the Religious Freedom Restoration Act (RFRA)?  Neither will be a difficult issue for the Court to resolve.

Consider these two issues in reverse order.  Under RFRA, the government is prohibited from imposing a “substantial burden” on religious exercise absent a compelling interest.  Here, the government has essentially admitted that the HHS Mandate substantially burdens religion by exempting non-profit entities with the same religious objection as Hobby Lobby and Conestoga.  And the government has essentially waived any argument that it has a compelling interest by exempting health plans covering tens of millions of additional people for no reason other than administrative convenience.  Given these actions, it is extraordinarily difficult for the government to argue that the Mandate complies with RFRA.  As Hobby Lobby’s brief explains:  “If RFRA means anything, it means the government cannot hand out exceptions for secular reasons and then insist that ‘uniformity’ forecloses similar exceptions for religious exercise.”

That leaves the slightly more interesting – but no more difficult – question of whether for-profit corporations can engage in religious exercise.  Again, the government has essentially conceded that non-profit businesses can exercise religions by exempting non-profit entities from the Mandate.  The government was forced to do so, because common sense and Supreme Court precedent tell us that non-profit church corporations do exercise religion.

But that leaves the government with two additional hurdles, one legal, one practical.  As a legal matter, there is nothing in the law or the Court’s precedents that suggests constitutional rights (particularly those under the First Amendment) should turn on a corporation’s tax status.  The New York Times is a for-profit corporation, but no one would question the newspaper’s ability to exercise fully its First Amendment free speech rights.

The government’s position looks no better from a practical standpoint, because for-profit corporations can and clearly do exercise religion.  That reality is true of a Jewish-owned deli that does not sell non-kosher foods.  It is true of a Muslim-owned financial brokerage that will not lend money for interest.  And it is true of the families that own Hobby Lobby and Conestoga who do not want to provide employees with abortifacients.

The government offers responses to these points, but they are not persuasive.  For example, the government contends that the profit-making motive of a for-profit corporation is what distinguishes it from a non-profit corporation.  But the law draws no such distinction, and it is not difficult to imagine a religious organization, like Tyndale House, which publishes bibles, that decides to incorporate as a for-profit so that it can run a business whose profits will then be funneled to religious charitable causes.  In other words, there is no limiting principle to the government’s position.

The government also says that there is no theological difference between an employee who uses a paycheck to purchase abortifacients and an employee who receives abortifacients under an employer’s health-insurance plan.  In other words, forcing religiously opposed employers to provide abortifacients is too indirect an imposition on religious beliefs to create a legal problem.

This argument is getting dangerously close to telling religious organizations and individuals that the government gets to decide what is religiously significant, because many of the world’s religions reject the very distinction the government is trying to draw.  As the amici brief for Christian colleges and universities explains, John Calvin, in his commentary on Paul’s Epistle to the Ephesians, admonishes the faithful to “beware of joining or assisting those who do wrong.  In short, we must abstain from giving any consent, or advice, or approbation, or assistance.”

And the Catholic Church, while acknowledging that material cooperation with another’s immoral act may not always be wrong, emphasizes that it is “always considered to be morally illicit” to provide material cooperation with the immoral taking of a human life, which the Church believes to be the case when an individual intentionally ends a pregnancy. In other words, for religious purposes, there is a momentous moral distinction between an employer providing wages that an employee may use to purchase drugs and prostitutes and the employer actually providing the drugs and prostitutes in the first instance.

In sum, the administration may be headed for another resounding, Hosanna-Tabor-style ruling from the Supreme Court.  And that prospect raises several questions that are much more difficult to answer than the legal issues presented in Hobby Lobby and Conestoga:  Why would the government pick a fight with the country’s major religions over religious liberty?  Why do it in the form of an administrative regulation, the least democratically accountable exercise of governmental authority?  Why choose the topic of abortion, the most divisive religious issue of our times?  And why foster more legal challenges and formal opposition to the Affordable Care Act, which polling shows remains unpopular with most Americans?

In sum, the administration’s position is contrary to the Supreme Court’s precedents, the actual practice of religion by businesses throughout the country, and the president’s affirmation of religious liberty at the National Prayer Breakfast.  What’s unfortunate is that the Court’s resolution of Hobby Lobby and Conestoga will not even begin to answer the most fundamental question presented by these apparent contradictions:  Why?

Recommended Citation: John Bursch, Symposium: Hobby Lobby and Conestoga: The most difficult-to-answer question, SCOTUSblog (Feb. 21, 2014, 10:54 AM),