Yesterday’s ruling from the US Supreme Court on the HHS mandate was a win for families and freedom against coercive force and fines.

Supreme Court to Obama Administration: You Don’t Have to Agree with Religious Beliefs to Respect the Liberty of the People Who Hold Them--and the Groups They Form

by Ryan T. Anderson

Yesterday’s decision demonstrates that the Supreme Court understands what Congress set out to do when it passed the Religious Freedom Restoration Act. Religious freedom is for all, regardless of the popularity of the belief. Congress, in passing RFRA, has said that if the belief can be accommodated, then it must be.

Yesterday’s ruling from the US Supreme Court on the HHS mandate was a win for families and freedom against coercive force and fines. In his opinion for the Court, Justice Samuel Alito made a number of arguments that deserve to be highlighted. His arguments are especially important as we try to determine how the ruling should apply to groups with lawsuits still pending, such as the Little Sisters of the Poor, Wheaton College, and Mother Angelica’s Eternal Word Television Network (EWTN). But first, here’s what the Court held.

For-Profit Corporations, Legal Persons, and Human Rights

The Court rejected the argument made by the Obama administration that the Religious Freedom Restoration Act (RFRA) does not apply to for-profit corporations of any kind, even those that are closely-held family businesses. The Court reached this judgment by looking to the text and history of RFRA. It also consulted the Dictionary Act, which controls the legal meaning of the terms used.

Over the years, the Court has often vindicated the rights of non-profit corporations and of individuals involved in commerce. So what was it about the combination of the corporate form and profit-seeking that would somehow disqualify an entity for protections?

At issue was the legal concept of personhood. Yesterday, the court ruled that “No known understanding of the term ‘person’ includes some but not all corporations.” Indeed, “no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”

Nor is there any reason to think that a for-profit corporation may only seekprofits: “modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else.” Alito points out that some corporations “take costly pollution-control and energy-conservation measures that go beyond what the law requires.” If for-profits can pursue these humanitarian ends, “there is no apparent reason why they may not further religious objectives as well.”

The Court also pointed out the absurd consequences if one rejected the “plain terms” of RFRA. Alito writes that “RFRA was designed to provide very broad protection for religious liberty.” But, he continues, the Obama Administration argues that religious citizens must “either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.”

Indeed, in the Administration’s view, “RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for in­stance, third-trimester abortions or assisted suicide.” This would force many conscientious family businesses out of the marketplace. RFRA, Alito notes, “was enacted to prevent such an outcome.”

As Justice Kennedy explains in his concurring opinion:

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.

Congress acted to protect the ability of citizens to lead their lives in the economic sphere when it passed RFRA. Alito explains that “Congress provided protection for people like the Hahns and Greens [the owners of Conestoga Wood and Hobby Lobby] by employing a familiar legal fiction: It included corporations within RFRA’s definition of ‘persons.’ But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings.”

Legal corporate forms are treated as persons in the law to serve and protect the rights and interests of flesh-and-blood human beings. Because “a corporation is simply a form of organization used by human beings to achieve desired ends,” when rights “are extended to corporations, the purpose is to protect the rights of these people.” So it is “quite beside the point” that a for-profit business may not be able to pray or receive a sacrament, because “protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.”

The Religious Freedom Restoration Act

So, it is clear that RFRA applies to corporate persons. But what is RFRA? Signed into law by President Clinton in 1993, RFRA had broad bipartisan support: it passed with a unanimous voice vote in the House and by a 97-3 vote in the Senate. As Kim Colby explained yesterday here at Public Discourse, “RFRA implements a sensible balancing test by which a religious claimant first must demonstrate that the government has substantially burdened a sincerely held religious belief. The government then must demonstrate a compelling interest that cannot be achieved by a less restrictive means.”

Yesterday, the Court made it clear that the HHS mandate substantially burdened a sincere religious belief in an unnecessarily restrictive manner. To determine this, the Court first looked to the beliefs of the Hahns and Greens. The Hahns are devout Mennonite Christians, and the Greens are devout Evangelical Christians. Both families believe that they are obligated to run their businesses in accordance with God’s law as they conscientiously understand it. Neither family objects to contraception per se, but both believe that life begins at conception and that it is wrong to kill—or facilitate the killing of—that life. Thus, both families objected to four of the twenty FDA-approved HHS-mandated contraceptives, because they have the potential to act post-fertilization and thus can kill a human embryo.

The Court did not second-guess any of these beliefs, nor did the Court judge whether these beliefs are right or wrong, true or false. The Court merely determined that the beliefs were sincere. In fact, the Court refused to render judgment, as the Obama Administration and Justice Ginsburg seem to have done, on whether the Hahns and the Greens had the “right” beliefs. Justice Alito notes that “HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.” But religious liberty, after all, is about “the right to be wrong” even in the pursuit of religious truth.

The ethical analysis of cooperation with evil and complicity in killing is complex and difficult, but the government need not—and should not—act as grand inquisitor adjudicating ethical orthodoxy. As the Court explains, “For good reason, we have repeatedly refused to take such a step.” When moral theologians and philosophers are still debating where to draw the line on acceptable participation with evil, why should government set a national policy? Instead, the Court recognized that RFRA doesn’t ask it to test the veracity of beliefs but the sincerity; the Court asked “whether the line drawn reflects ‘an honest conviction,’ and there is no dispute that it does.”

Substantially Burdening Sincere Religious Beliefs ...
What about Non-Profits? ...

Understanding, Enforcing, and Respecting RFRA ...

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