Thursday, July 31, 2014

Lesson of Hobby Lobby: Statutes almost always trump regulations.

Hobby Lobby, Inc. v. Burwell was decided on June 30, and more religious rights litigation is on the way to the U.S. Supreme Court, so here are some major points of the decision as we prepare for the next round:



  • When a regulation collides head-on with a statute (or two), the regulation usually loses.  The Affordable Care Act was deliberately silent about abortion and contraception because, as some might remember, there were in 2010 a dozen and half Democrats in the House of Representatives led by Bart Stupak who refused to support the legislation if it funded abortion.  Stupak became a pariah in his own party, but President Obama promised to not fund abortion through the Affordable Care Act if Stupak and others supported its passage.  The Act would not have cleared the House if the President had not so promised.
  • Women's healthcare to be provided under the Affordable Care Act is not specified in the Act itself, but in the regulations promulgated by the Secretary of Health and Human Services.  
  • Agree or disagree with the regulations, there is little doubt that large numbers of Americans, many of them religious, hold a worldview that life begins at conception and that it is morally wrong to abort a baby through abortifacient contraceptives.  The regulations, like many insurance policies, treat pregnancy as an illness to be prevented rather than as life to be celebrated and require health insurance to provide twenty forms of contraception, including those which cause the abortion of a fertilized egg.
  • The Religious Freedom Restoration Act (RFRA) requires the government, if its policy imposes a "substantial burden" on the exercise of religion, to show it used the "least restrictive means" to provide for a "compelling interest".  If Congress had considered free contraceptives to be a compelling interest for all Americans, it could have declared so in the text of the Affordable Care Act.  Likewise, Congress could provide free contraceptives by distributing them through every federal agency from the U.S. Postal Service to the Department of Education, but Congress has not done so.  Instead, the Secretary of Health and Human Services promulgated a regulation, despite vehement protests by religious groups, for private employers to pay for contraceptives through group health insurance.  The Supreme Court held the Secretary's method was not the least restrictive means to do so, though it imposed a considerable burden upon religious believers who opposed the regulation's mandate.
  • The Dictionary Act defines "person" in U.S. law to include "corporations."  The Dictionary Act is old enough to have numerous exceptions carved in it, but the Supreme Court refused to restrict the definition of "person" to natural persons when the Dictionary Act includes corporations and much American law is based upon this presumption.
  • While it is true that the owners of Walmart or Chevron cannot collectively practice or uphold one religion, it is very common that family-owned companies have corporate philosophies, policies, and charitable giving that clearly reflect the owners' religious beliefs.  Ever try to go to Chik-fil-A on Sunday?
  • The Supreme Court held that the religious beliefs of a closely-held corporation are protected by a federal statute (the Religious Freedom Restoration Act) from the enforcement of a federal regulation that provides for contraceptives not through the least restrictive means, but by requiring business owners to violate their consciences.

Thus, the Supreme Court concluded that a regulatory mandate not declared specifically in the statute cannot be enforced in contradiction to the terms of another federal statute.  Though the Hobby Lobby decision is a big win for religious liberty, there will be many more decisions.  Two judicial trends- victories for homosexual rights and victories for religious liberty- will clash often in the coming months.  There are dozens of lawsuits.