Retrospective on Hobby Lobby

This is a repost of an article I wrote in 2014, on the (then recent) Burwell v Hobby Lobby Supreme Court decision, which ruled that owners of for-profit corporations could withhold certain healthcare benefits (i.e. contraceptives) if their owners had religious objections.  I was reminded of this one because of Trump’s recent rule allowing federal contractors to discriminate based on religious views.  While only tangential to the present issue, I thought it was a good explanation of the rationale behind the Religious Freedom Restoration Act, and how one might argue around religious exemptions.

As I may or may not have mentioned before, my boyfriend has a law degree.  So I get to hear a lot of lawyerly opinions on the recent Burwell vs Hobby Lobby decision, both from him and his friends.  And they seem to contrast with the opinions I get from atheist blogs, where there’s lots of panicking about the consequences, but very little explanation of the mechanical details of the decision.

The Hobby Lobby decision was based on the Religious Freedom Restoration Act (RFRA), a federal law from the 90s.  The RFRA says,

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

Laws specifically targeted against religions are already unconstitutional, but the RFRA adds religious protection from neutral laws.  For example, if a company bans hats among employees, that is a neutral rule that disproportionately affects certain minority religions which mandate wearing hats.

It’s intended to protect religious minorities, because while the legislature is always conscious of the impact on the religious majority, they may ignore the impact on religious minorities.  For example, during prohibition, there was an exception for sacramental wine.  But in the 90s, some Native American employees were fired for using peyote, which is the case that motivated the passing of the RFRA.

Of course, you can imagine neutral laws which really should apply to everyone even if they burden some religions.  Non-discrimination (with ministerial exceptions) seems like an obvious one.  Therefore, RFRA does not completely rule out laws which burden exercise of religions.  Rather, it requires that those laws undergo “strict scrutiny”.  That means they must be:

  • Justified by a compelling government interest
  • Narrowly tailored to achieve that interest
  • Be the least restrictive means to achieve that interest

Hold on, isn’t women’s health a compelling government interest?  Did the Supreme Court decide that it is not compelling enough?

In fact, the Supreme Court did not opine on whether it was compelling.  Instead, they ruled that the Affordable Care Act (ACA) was not the least restrictive means to achieve that interest.  And here’s why.  The ACA already exempts nonprofit religious organizations from paying for contraception.  The legislators wrote that in.  So if they made exceptions for nonprofits, why not for-profits too?  How can we argue that the ACA is the least restrictive law when applied to for-profits, when it is already less restrictive on nonprofits?

This is not so much bad because of the direct consequences.  Hobby Lobby employees will still get contraception covered by their health insurance, because the health insurance is required to pay for it when Hobby Lobby doesn’t.  Presumably, the insurance providers will just raise non-contraceptive premiums to balance it, and Hobby Lobby can pretend they’re not paying for it when they sort of are, really.  But it’s bad because it sets bad precedent.

This should provide a road map to the various things that could have been wrong with the Hobby Lobby decision.  Should the RFRA be changed, or removed altogether?  Is the problem (as many argue) that RFRA should apply only to individuals and not corporations?  Is the problem with the legislature, who already made a huge exception for nonprofits?  Or is there something wrong with the slippery slope argument between nonprofits and for-profits?  What do you think?

Postscript: Under the 2014 version, I got a very thoughtful comment from Captain Heartless (whom I know to have legal expertise) remarking on other problems with the Burwell v Hobby Lobby decision.  In particular, it was based on the theory that the religious views of a corporation are those of its owners, even though the point of a corporation is to be a separate entity from its owners.


  1. Golgafrinchan Captain says

    I recall hearing at the time (no citations, but certainly plausible), that the insurance companies were fine with providing contraception free, simply because of math. They can provide a truck load of birth control for the cost of one prevented pregnancy.

    Ok, not exactly what I wanted, but here’s a 2012 Business Insider article about the relative costs.
    One of the links in the article is about insurance companies, but the link is now dead.

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