In the wake of
this morning’s Supreme Court’s decision that the
Affordable Care Act’s contraception mandate does not apply to
closely held corporations like Hobby Lobby, which challenged the
requirement, you’ll probably hear a fair amount of commentary and
complaining about the religious rights of corporations. But that’s
not the best way to think about the decision. The language of the
ruling,
written by Justice Samuel Alito, emphasizes repeatedly that it’s
not really about corporations—it’s about the individual people who
own and operate those corporations.
The gist of the decision, as Reason’s Damon Root
explained earlier, is that Obamacare’s contraception mandate,
which applies to most employers with more than 50 people, violates
the 1993 Religious Freedom Restoration Act (RFRA), a law which
provides that “government shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of
general applicability.” Any exceptions should further a “compelling
governmental interest” and be the “least restrictive means” of
doing so.
The key to Alito’s ruling arguably comes down to just two words:
“a person’s.”
The big question isn’t whether the contraception mandate
violates the religious freedoms of some faceless corporate entity
entirely separate from the individuals who own that company—it’s
whether the requirement would violate the free exercise of
religious for the particular people who founded and now
run the company.
As Alito writes in his opinion, “A corporation is simply a form
of organization used by human beings to achieve desired ends….When
rights, whether constitutional or statutory, are extended to
corporations, the purpose is to protect the rights of these
people.”
In seeking to defend the requirement, the federal government had
argued that Hobby Lobby, as a for-profit corporation, was not
eligible to challenge the rule under the RFRA because corporations
are “separate and apart from” their individual owners and
operators. They were distinct, and not “people,” and therefore
ineligible for the protections of a law designed to shelter “a
person’s exercise of religion.” Alito says, more or less, that
this is nonsense: “Corporations, ‘separate and apart from’ the
human beings who own, run, and are employed by them, cannot do
anything at all.”
It’s pretty clear that complying with the contraception
requirement would have violated the religious beliefs of the
individuals in the small family that owns Hobby Lobby, a closely
held corporation that expressly says in a statement of purpose that
it is committed to “operating the company in a manner consistent
with Biblical principles.” (As Alito also notes, no one questioned
the sincerity of their beliefs.) It’s the free exercise of those
individual that the RFRA is designed to protect, and it’s their
individual religious freedoms that most concern Alito. The focus on
these individuals, with their clearly defined religious beliefs,
also suggests why the ruling might not apply to large public
corporations where it is arguably much harder to pin down any
individual interests.
Alito’s argument isn’t exactly the same as the one proposed by
the Cato Institute in its
amicus brief on the case, but it draws from a similar line of
thinking. “The real issue in these cases,” according to Cato’s
brief, “is whether individuals who wish to conduct their
business lives in accordance with their religious beliefs forfeit
the right to do so when they organize their business in the form of
a corporation—in particular, a closely held corporation.”
Individuals who choose to organize their business affairs this way
“do not check their religious values at the office door,” the brief
argued. Alito’s opinion seems to share the sentiment when it
declares that “protecting the free-exercise rights of corporations
like Hobby Lobby…protects the religious liberty of the humans who
own and control those companies.”
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