That said, in my view, it’s also a deeply flawed decision which carries grave and serious risks if it is not carefully cabined.

This decision does NOT say that, broadly speaking, companies can avoid paying for the health insurance of their employees. It does NOT say that, broadly speaking, companies do not have to pay for contraceptive care. It does NOT say that, as some commentators have had it, women are second-class citizens, that contraceptive care isn’t important or isn’t health care, or that only Christian religious beliefs are protected. It is a very narrow decision, as we have generally come to expect from Justice Alito, and it deliberately calls out many of the potential extreme extensions of the law as things which the decision does not hold.

The Supreme Court today handed down a decision in the case of three lawsuits challenging the rule, promulgated by the Department of Health and Human Services, which required those companies to pay for employee health insurance which included free coverage for certain contraceptive techniques the companies objected to. The decision ignited a firestorm of controversy and outrage, much of it not responsive to what the Court was actually saying or ruling.

§ § §

First, some background. This decision was NOT an interpretation of the First Amendment, and the Supreme Court is not saying that the Constitution requires this result. It is an interpretation of something called the Religious Freedom Restoration Act, as amended by something called the Religious Land Use and Institutionalized Persons Act. Congress passed the Religious Freedom Restoration Act in response to an earlier Supreme Court Decision, Employment Division of Oregon v. Smith. Smith dealt with some American Indians who had filed for unemployment insurance in Oregon, only to be told that they could not obtain unemployment insurance because they had been convicted of using peyote, which they said their religion required as a sacrament. In Smith, the Supreme Court upheld the decision of the Oregon courts, arguing that the first amendment does not require that religious persons be able to use their religion as an exemption from generally applicable laws. Congress did not like that outcome, and passed the Religious Freedom Restoration Act in response to it.

As amended by the Religious Land Use and Institutionalized Persons Act, the Religious Freedom Restoration Act says that federal government actions shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. If a regulation does substantially burden a person’s exercise of religion, the person is entitled to an exemption unless the government can demonstrate that application of the burden to the person (a) furthers a compelling government interest and (b) is the least restrictive means of furthering that government interest.

This is a general rule. It applies to ALL federal government agency actions, unless some subsequent statute explicitly overrides it. And it applies to the way courts interpret subsequent statutes, unless the subsequent statutes explicitly overrides it.

It is a constitutional rule. It requires the federal government to be more accommodating to religion than the First Amendment would require it to, but because it is neutral among religions, it does not constitute an establishment of religion.

It is the rule which the Supreme Court was interpreting this morning.

§ § §

The lawsuits in this case came from three companies who objected to a specific part of a rule that the Department of Health and Human Services had promulgated: the rule which required them to pay for insurance coverage that included four particular types of contraception. They did NOT object to covering contraception in general – just to specific technologies which work by preventing implantation of a fertilized embryo. In their view, preventing implantation of a fertilized embryo is tantamount to abortion, and therefore the federal regulation was requiring them to pay for abortion.

These companies shared an important characteristic: they were all private, closely held corporations.

It’s probably not clear, immediately, why that matters.

We know from general legal principles, and because something called “the Dictionary Act” says so, that corporations are considered to be ‘persons’ or ‘people’ for the purposes of laws which use those terms. There are obvious limitations to this principle - corporations cannot be imprisoned, and it’s hard to execute a corporation – but the general rule applies. It even applies for the purpose of the first amendment; corporations have speech and press rights just like any other person.

Of course, it’s very hard to conceptualize or explain how a corporation can ‘speak’; what does it mean for a corporation to have an opinion, let alone to utter one? There are ways around this – an official publication is a company speaking, as is a company filing a court document – but there are edge cases where it’s hard to establish.

It’s even harder to understand the concept of a corporation having religious beliefs. What does it mean for McDonald’s to have a religious belief? For WalMart or Target?

On the other hand, it’s easy to understand what it means for an individual to have a religious belief. Under the RFRA, if I honestly believed that some government regulation requires me to violate my religious beliefs, and I could convince a court that that violation imposed a burden on me, I would be entitled to an exemption unless the government could demonstrate both that it had a compelling interest and that its regulation was the least restrictive way to meet the compelling interest.

If I had a business which was personally owned and not incorporated, of course, that business would be entitled to the same exemption, because that business is simply me acting in certain realms. If I run a bodega, say, and that bodega is a privately owned business which is never incorporated, everything that bodega does is me doing it, and if I have a right to an exemption, so too does that bodega.

So those are the two opposite poles in the description of the corporate world: the small sole proprietorship which is not incorporated, which is clearly entitled to exemptions under RFRA, and massive corporations like WalMart. It’s basically impossible to tell what WalMart is thinking or what its religious opinions are, and so as a result it probably can’t have an exemption under the RFRA, but where’s the line to be drawn?

One place to draw it would be incorporation – as soon as you file for limited liability status, you lose the right to exemptions of this sort. But on some level that’s bizarre; if I incorporate my hypothetical bodega, it’s still just me acting through the bodega, right?

The court is drawing a line in a particular place: a corporation which is PRIVATE (eg, not publically traded on the market) and CLOSELY HELD (eg, it has a small number of owners who are identifiable and whose views are identifiable), then the corporation is entitled to exemptions under the RFRA. Otherwise, it isn’t clear (because the Supreme Court only addressed this specific case, and generally does not opine on cases not before it).

This is an important point: the result in today’s decision applies ONLY to private, closely held corporations. It does NOT apply to publically traded corporations, or to private corporations which are not closely held.

§ § §

So the first question is: is Hobby Lobby’s religious freedom intruded upon? The Supreme Court says ‘yes’: the owners of Hobby Lobby (and the other corporations) believe the four methods in question to be abortifacients. Assuming their beliefs are honestly and earnestly held, this is a severe intrusion on their religious freedom – they are being required, in their views, to pay for insurance coverage which allows the covered employees to commit murder. They are being required to pay directly for the availability of murder as an option for their employees.

This is a ridiculous framing for anyone who doesn’t think the contraceptive techniques in question are abortifacients, or for anyone who does not believe abortion is murder. But the fact that you or I might think something is ridiculous doesn’t matter; what matters, in the context of earnestly held religious beliefs, and the federal government’s deference to religious beliefs, is whether or not the person who claims the belief believes it. These people do, and so their religious freedom is infringed upon by a regulation requiring them to pay for these particular contraceptive techniques.

So the next question is: is the regulation in question in furtherance of a compelling state interest? The Supreme Court assumes that it is , and then moves on to the next question.

Is the means adopted – requiring Hobby Lobby to pay for insurance which covers the contraceptive techniques to which it objects – the least restrictive option?

The majority says no: it isn’t. There are ways the government could achieve the same ends that do not require this intrusion on Hobby Lobby’s religious freedom: it could pay for the insurance itself, or it could use the same system it uses for religiously objecting nonprofits (which basically transfers the cost to insurance companies).

§ § §

So, to summarize:

• This ruling applies only to privately owned, closely held corporations

• This ruling is intended to protect the religious rights of the owners of those corporations

• This ruling is limited to sincerely held religious belifs

• This ruling is SPECIFICALLY limited only to a small subset of contraceptive techniques rather than contraception in general

§ § §

So if all of that is true, why do I dislike this ruling?

The ruling establishes a rule: closely held privately owned corporations are entitled to an exemption from generally applicable regulations under the RFRA, just like individuals would be.

It applies that rule specifically to health insurance mandates.

So … what keeps it from applying in other cases? What keeps it from applying to a closely held privately owned corporation whose owners object to blood transfusions?

The majority opinion explicitly says the opinion doesn’t apply in that case. BUT it provides no real coherent explantion for WHY. It just asserts non application by fiat.

But the legal system works by analogy and by extension. Someone is going to try that extension, and that case is going to reach the Supreme Court, and flat declaration notwithstanding, there’s no logical explanation for why it won’t come out the same way.

Of course, this isn’t an objection to this decision, really; it’s an objection to the scope of the RFRA. Which means on some level I’m not saying the Supreme Court is wrong … I’m saying Congress passed a bad law and didn’t fully understand its scope and should be about fixing it. Unfortunately, I know it won’t.

