RFRA Trumps ACA

Burwell v. Hobby Lobby Stores, Inc., came down -- as expected -- as the last decision of this Term.  And, as is often true of the final decisions of any Term, it was the usual 5-4 split -- albeit with a  concurrence by Justice Kennedy that may caution against too broad an application of the majority opinion.

The Religious  Freedom Restoration Act, of course, prohibits the federal government from imposing a substantial burden on "a person's exercise of religion" unless the government demonstrates that it has a compelling interest in doing so and that its method is the "least restrictive means" of furthering that compelling interest. 

The Affordable Care Act, or at least the regulations promulgated pursuant to it, require most employers to provide comprehensive health insuance for their workers or, in the alternative, to pay a tax.  Comprehensive insurance includes contraceptive coverage, which is itself objectionable to some religious observers; but  others, while not opposing contraception per se, have religiously-based objections to methods they view as abortion. This was the position of the plaintiffs (two companies and their controlling individuals).  

The majority, authored by Justice Alito, found little to argue about in this collision of RFRA and the ACA.  Despite reams of ink spilled on the issue, he held that RFRA protects the religious interests of "persons" who direct closely-held corporations, even if the corporations as such are for profit and not explicitly religious.  Second, the majority determined that ACA imposed substantial burdens on the plaintiffs since one of the companies would have to pay as much as $475 million per year if it failed to comply with the ACA mandate to provide insurance to its employees. Finally, although assuming -- without deciding -- that providing health insurance with contraceptive coverage furthered a compelling governmental interest, the Court held that the ACA scheme did not employ the least restrictive means of pursuing that objective.  For the majority, the government's use of a different approach to "respect the religious liberty of religious nonprofit corporations" pointed the way to how the government could accommodate the religious liberty concerns of the plaintiffs. 

The majority went to pains to describe its opinion as "very specific," rejecting the principal dissent (authored by Justice Ginsburg, who was joined in great part by Breyer, Kagan, and Sotomayor) which feared that the Court's construction of RFRA would open the door to for-profit corporations opting out of laws with which they disagree. 

The principal dissent found RFRA did not reach the case before the Court: although the for-profit corporations might be "persons" within the meaning of the statute, they could not, as such, "exercise religion." The Court held otherwise, and, although it believed that large, publicly traded corporations are "unlikely" to assert RFRA claims, it did not rule out that possibility.

The majority opinion has a number of subsidiary points well worth considering, but maybe not in this post. For example, it purportedly refused to consider, as not properly raised, the argument that the plaintiffs were not burdened because the tax they would have to pay were they to discontinue insurance would be less than their cost savings. But it nevertheless "would find it unpersuasive" were it considered!  And then there's the question of whether the religous objection to the contraceptive methods was "too attenuated." The Court's basic answer was that the judiciary doesn't pass on the plausibility of a religious claim.

Perhaps the most interesting aspect of the majority is its canvassing of less restricitive alternatives, including the government's providing the contraceptives in question to woman who need them. This would be "minor when compared to the overall cost of the ACA"!  A true statement, but a bar that almost any alternative would meet. The Court, however, avoided deciding whether that alternative would suffice.  Instead, it found sufficient the government's approach to contraceptive coverage for religious nonprofits. When the nonprofit has a religiously-based objection, its insurance company must provide such coverage to employees independently of the policy. In that context, the accommodation was viewed as win-win-win (contraceptivess for employees; no payment by the nonprofit; and the insurance company's costs would be less for contraception than for childbirth). The Court saw no reason that alternative could not be used for for profit corporations as well.

I said at the outset that Justice Kennedy's concurrence might be the most interesting part of the opinion. Although he joined the Alito opinion, thus creating a majority on the issue decided, his concurrence seemed to stress that the majority's opinion did not require the government to "create an additional program."  Rather, all HHS needed to do was extend the accommodation already provided religious nonprofits to for profit companies with religious objections. That was a very different matter from a situation "in which it is more difficult and expensive to accommodate a governmental program to countless religious claims."

In short, whether or not the principal dissent is right as to the potential reach of the majority, Justice Kennedy clearly marked out a potential stopping point.