The Hobby Lobby Ruling: Hobby Horse, One-Trick Pony Or Citizens United 2.0?

The June 30, 2014 decision of the United States Supreme Court in Burwell vs. Hobby Lobby Stores, Inc. has already generated a broad range of commentary for and against, with many predictions. Within the several different opinions issued by the Justices: What will the future hold for Obamacare, the religious rights of business owners and the rights of women and other groups and individuals to not only reproductive health choices but also to medical care, other governmentally-mandated benefits and even the full participation in American society and citizenship? The opinions, collectively, leave more questions than perhaps anticipated.

Given the Court's ideological divisions, the literal result was not very surprising: A Hobby Lobby 'win' on some basis or another was not unanticipated. But it may have surprised some that that decision was not based on the First Amendment's 'free exercise' clause but on the majority's interpretation of a 1993 stature, the Religious Freedom Restoration Act (RFRA), passed unanimously by the House and with only three negative votes in the Senate, and signed by President Bill Clinton. The RFRA imposes a two-part test on government rules that are deemed to impose a substantial burden on a person's exercise of religious beliefs: such a rule must serve a "compelling government interest" and also constitute the "least restrictive means" of serving that interest.

Writing for a plurality of himself and three Justices who joined his opinion and Justice Kennedy who joined via his own concurring opinion (more on that below), Justice Alito held that (i) the term 'person" in RFRA included corporations (like Hobby Lobby) and not just individuals because of the general definition of the term that applies to all Federal legislation unless specifically negated (the "Definitions Act); (ii) that the ObamaCare mandate to provide certain contraceptives cost-free to women through mandated employer-based insurance indeed imposed a 'substantial burden' on Hobby Lobby's religious exercise; (iii) by way of assumption, that this mandate serves a compelling government interest; but (iv) was not the 'least restrictive' means of achieving the compelling goal and thus cannot stand under the RFRA.

Notably, Alito seemed to go out of his way to expand the holding to encompass 'all FDA-approved contraceptives' even while observing that the government could, by simply paying for the pills directly, provide women equivalent free access to the four 'particular contraceptives at issue here' (only those considered by Hobby Lobby to induce abortion by way of destruction of fertilized but non-implanted eggs). Dissenters surprisingly did not note this judicial 'leap of faith.' But perhaps some law review articles will. Strict constructionists might well conclude that the broad 'holding' shared at the end of Alito's opinion -- that the Affordable Care Act's 'contraception mandate' violates the RFRA -- contains more than a little dicta.

While we're waiting for that light to dawn, however, there are a number of other more pressing questions that the Federal courts and the body politic will have to wrestle with in the coming months and years.

1) Is there any reasonable chance that Congress will enact legislation that obviates the Hobby Lobby decision by simply paying the insurance premium directly from taxpayer funds for FDA=approved contraceptives for women denied such by their employer's religious objections? The short answer, to anyone who reads a newspaper or watches TV news or listens to talk radio, is obviously no, since the party that controls the House of Representatives considers the Hobby Lobby decision a major victory. More likely, the Obama Administration will attempt to carve out a similar work-around that they have applied to the objections of non-profit religiously affiliated corporations like schools and hospitals and charities requiring insurance companies or policy administration firms to provide contraceptives for free to women denied insurance by such employers for religious reasons. After all, even Justice Alito cited that carve-out as an example of a less restrictive (of proprietors' religious exercise) means of achieving the government's compelling objective.

2) But in turn, this possibility flips us back to the question whether that work -- around itself will survive a court test to its viability under the RFRA and the First Amendment free exercise clause. The Little Sisters of the Poor have taken the position that merely requiring them to self-certify to insurance carriers their religious purpose and objecting to providing contraception insurance to employees of their non-profit is a substantial burden because it in effect implicates them by being one necessary step in even the 'work around' system of proving such coverage at the end of the day.

3) Justice Alito took sort of a 'who am I to judge' perspective on the question of what degree of 'implication' constitutes a substantial burden on religious exercise. Perhaps, however, not even he would have the judicial gall to turn around in less than a year and rule against the very process he cited as a reason why women would not necessarily be disadvantaged by his ruling in Hobby Lobby! More significantly, he might well be influenced by a careful reading of Justice Kennedy's concurrence, which literally went out of its way to praise the work-around alternative -- perhaps sending a message to Alito that he could not count on his vote for a majority in favor of the Little Sisters' claim, and likewise to the Catholic bishops who otherwise might see the Hobby Lobby holding as assurance that their views of the mandate -- that it should be stricken from the Affordable Care Act in its entirety for all employers -- will ultimately be endorsed by the High Court. In World Cup terms: Catholics (who vastly support contraception) 2, Bishops 1, on penalty kick by Striker Kennedy -- still the swing vote!

That still leaves the many questions raised by Justice Ginsburg in her "respectful and powerful dissent" (quote Justice Kennedy -- another hint of his discomfort with a broad interpretation of Hobby Lobby's holding). What about known religious objections to vaccination, antidepressants, and medicines derived from pigs, or objections of proprietors of health clubs, photographers, and the like, to serving homosexuals and transgender persons? Or 'closely held' apartment complexes who may not wish to rent to them on the basis of biblical interpretations? The majority ruled out using the RFRA as an excuse for racial discrimination, but not for exclusions based on sex or sexual orientation.

Justice Alito's Hobby Lobby holding applies only to 'closely held' corporations, but without defining that term. The IRS definition, however, is quite broad: Businesses other than personal services firms having five or fewer owners of 50 percent of the value of its stock during the latter half of a tax year. As Justice Ginsburg pointed out, this definition includes big companies like Mars (candies) with $23 billion is annual revenue, and Cargill, with 140,000 employees. While such firms account for over 50 percent of all U.S. businesses, their percentage of all employees is much lower, and 96 percent of them would not be subject to the Obamacare mandate as they have fewer than 50 employees each. So Justice Alito's loose, undefined choice of words probably won't result in a sort of 'Citizen's United' outbreak of corporate fervor of a religious, not political, nature.

Yet Justice Ginsburg's unanswered questions haunt the decision: How can a Court that has specifically eschewed judging the relative merits of religious exercise claims choose between objections to inoculations and contraception? And why does the 'corporate veil' that generally protects stockholders from claims and obligations beyond their investment that they would be subject to as individual proprietors somehow get shredded when it serves their interests to share a seamless identity with their corporation in order to achieve their own personal religious objectives?

Finally, someone might ask how the five men who decided Hobby Lobby would rule if the corporation's religious objections were vasectomies. What would be the 'least restrictive' alternative -- and for whom?