INTRODUCTION: “WHAT WOULD DWORKIN DO?”
When this essay appears in print, it will be two years since the death of legal philosopher and constitutional law scholar Ronald Dworkin. One recurring reminder of the magnitude of that loss is the absence of Dworkin's regular, insightful essays for the New York Review of Books analyzing significant US Supreme Court decisions. Thus, when, last term, a closely divided (5–4) Court released its much-anticipated decision in Burwell v. Hobby Lobby, upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (the so-called contraceptive mandate) of the Patient Protection and Affordable Care Act of 2010 (ACA),Footnote 1 sadly missing in the flurry of commentary was Dworkin's assessment of the case.Footnote 2 Readers of this journal may perhaps appreciate the allusion when I say that the decision prompted me to wonder, “What would Dworkin do?” That same question arose again when, on July 3, 2014, in Wheaton College v. Burwell, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted the emergency request of Wheaton College to be relieved from complying with the ACA's accommodation procedure for religious nonprofit organizations that object to contraceptive coverage on religious grounds, even before the lower courts had ruled on the merits of the college's claim.Footnote 3
Asking “What would Dworkin do?” were he evaluating these two cases seems particularly apt given Dworkin's proposal, in his final book, Religion without God, to abandon a “special right to religious freedom” in favor of a “more general right to ethical independence.” (Religion without God [RwG], 132).Footnote 4 Indeed, Dworkin criticized Congress's enactment of the Religious Freedom Restoration Act (RFRA) (RwG, 132–35),Footnote 5 the statutory basis for the majority's ruling in favor of Hobby Lobby's challenge to the ACA.Footnote 6 Dworkin also briefly raised, but did not resolve, the question of what place exemptions from general laws would have in the reorientation he proposed (RwG, 133–37).
The question of exemptions is timely and pressing. On the one hand, the Hobby Lobby majority cited the ACA's “accommodation for nonprofit organizations with religious objections” as evidence that the federal government could find a way—by extending that exemption to companies like Hobby Lobby—to advance its interests in women's health without impinging on the religious beliefs of Hobby Lobby and similar corporations.Footnote 7 On the other hand, the majority also said that it was not deciding whether the exemption approach would, in fact, satisfy RFRA's requirements.Footnote 8 Soon after, the Court granted emergency relief to Wheaton College, which argued, as have numerous other religious institutions, that even filing the form certifying its status as a religious nonprofit and its objection to providing contraceptive services “makes it complicit in grave moral evil” by “triggering the obligation for someone else to provide the services to which it objects.” Wheaton College argued this substantially burdened its free exercise of religion under RFRA.Footnote 9 Reading the tea leaves, Justice Sotomayor (joined by the other two female members of the Court) strenuously argued that granting Wheaton College that relief “does not square with the Court's reasoning in Hobby Lobby”; further, Wheaton College's substantial burden claim did not meet the “indisputably clear” standard for relief.Footnote 10 Numerous challenges by religious nonprofit organizations to the ACA's accommodation provisions as not accommodating enough continue to wend their way through the federal courts.Footnote 11 At this writing, three federal circuits have rejected these challenges, and the Supreme Court may eventually weigh in on the issue.Footnote 12 Moreover, although the Hobby Lobby majority emphasized that the for-profit corporations before it were closely held, family-owned corporations, the dissenters questioned whether that distinction would make a difference in future religious freedom challenges brought by corporations.
In this essay, I evaluate the recent Hobby Lobby litigation through the lens of Religion without God's call for a reorientation away from a special right of religious freedom to a general right of ethical independence. Is a corporation, for example, possessed of a right of ethical independence? Does it have a conscience? In Part I, I briefly recap Dworkin's proposed reorientation, focusing on Religion without God's brief discussion of exemptions. Because the Hobby Lobby litigation involved for-profit corporations, I augment this discussion by recounting Dworkin's sharp criticismFootnote 13 of Justice Kennedy's majority opinion in Citizens United v. Federal Election Commission,Footnote 14 in which the Court held that corporations were persons for purposes of exercising First Amendment rights in political campaigns and struck down federal laws limiting corporate spending for certain forms of political speech.
In Part II, bearing in mind Religion without God's suggested framework for handling the issue of exemptions, I examine some of the arguments made in briefs filed by the parties and in amicus briefs on both sides of the Hobby Lobby case. In Part III, I evaluate the different opinions in Hobby Lobby, focusing particularly on the different conclusions about whether a for-profit corporation has a right to the free exercise of religion. I contrast the majority's and Justice Kennedy's concurring opinions with Justice Ginsburg's dissent on the idea of using the for-profit corporate form to live out religious beliefs. Here, I draw on Dworkin's prior criticisms of Kennedy's opinion in Citizens United and ask whether Dworkin would have been similarly critical of corporate personhood when a business was family owned and closely held.
“Dignity” was a central principle in Dworkin's work;Footnote 15 it is also prominent in the jurisprudence of Kennedy,Footnote 16 including his Hobby Lobby concurrence. Strikingly, in explicating the right to ethical independence in Religion without God, Dworkin drew on the Court's famous articulation of a right to self-definition as being at “the heart of liberty,” first made in the joint opinion in Planned Parenthood v. Casey in the context of women's reproductive liberty and later repeated by Kennedy in his majority opinion in Lawrence v. Texas, affirming the right of intimate association of gay men and lesbians (RwG, 121–22). Dworkin sharply disagreed with Kennedy's recognition of corporate personhood in Citizens United, but he would likely have shared the concern for women's reproductive liberty at the core of Justice Ginsburg's Hobby Lobby dissent. In Part IV, I conclude by returning to the question, “What would Dworkin do?” with respect to the question Hobby Lobby did not address but that is now percolating in the courts: Is the ACA's accommodation of those with religious objections to the contraceptive mandate not accommodating enough? What insights does Dworkin's work shed on what is at stake, in this appeal for further opt-out from the health care law, for these institutions and for women?
PART I: RELIGION WITHOUT GOD AND RELIGIOUS ACCOMMODATION
In Religion without God, Dworkin enlists the principle of ethical independence to protect one core part of what he calls the “religious attitude” that unites believers and “religious atheists”—namely, the conviction that human life has “objective meaning or importance” and that “each person has an innate and inescapable responsibility to try to make his life a successful one.” This means “living well, accepting ethical responsibilities to oneself as well as moral responsibilities to others . . . because it is in itself important whether we think so or not” (RwG, 10). Each person has an “innate, inalienable ethical responsibility to try to live as well as possible in his circumstances” (RwG, 24). This responsibility “includes a responsibility of each person to decide for himself ethical questions about which kinds of lives are appropriate and which would be degrading for him” (RwG, 114). Political liberty, Dworkin argues, includes this general right to “ethical independence,” which limits the reasons government may restrict freedom. It “must never restrict freedom just because it assumes that one way for people to live their lives . . . is intrinsically better than another” or assume “that one variety of religious faith is superior to others in truth or virtue” (RwG, 130, 134). Ethical independence also protects “religious conviction” by “outlawing” a constraint that is neutral on its face, but “whose design covertly assumes some direct or indirect subordination” (RwG, 134). Such independence, however, does not bar government from “interfering with people's chosen ways of life” for other reasons, such as protecting other people from harm, protecting “natural wonders,” or the general welfare. (RwG, 130–31).
Dworkin argues that, if “we treat religious freedom as part of ethical independence, then the liberal position” on abortion rights, as well as on “gender equality in marriage,” becomes “mandatory.”Footnote 17 Dworkin observes that “[o]pponents of homosexuality and abortion very often cite a god's will as warrant;” by contrast, he argues, “few men or women who want choice in these matters conceive their desire as grounded in religion” (RwG, 144). A focus on ethical independence, in a sense, levels the playing field so that religious freedom is no longer a “special right” that places on government the burden of showing a “compelling” interest for any law that burdens religion.
Dworkin is, thus, critical of RFRA, which was, “in effect, a declaration that religion needs more protection than general ethical independence offers” (RwG, 135). Congress enacted RFRA to reverse the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith (the “peyote case”),Footnote 18 which held that neutral laws of general application need not be subject to a compelling state interest test. Dworkin asserts that while RFRA was “wildly popular,” Congress was “wrong” as “a matter of political morality,” and the Court, in Smith, was “right.” Dworkin elaborates: “If we deny a special right to free exercise of religious practice, and rely only on the general right to ethical independence, then religions may be forced to restrict their practices so as to obey rational, nondiscriminatory laws that do not display less than equal concern for them” (RwG, 135–36).
“Equal concern” is a signature Dworkin concept, dating back to Taking Rights Seriously, where he put forth as “postulates of political morality” that: “Government must treat those whom it governs with concern, that is, as human beings who are capable of suffering and frustration, and with respect, that is, as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived” (Taking Rights Seriously [TRS], 272). Moreover, “[g]overnment must not only treat people with concern and respect, but with equal concern and respect;” for example, it may not distribute “goods or opportunities” or “constrain liberty” on the ground either that some citizens are “more worthy of concern” or that “one citizen's conception of the good life of one group is nobler or superior to another's” (TRS, 272–73). Dworkin's subsequent work developed this conception of political morality around principles of dignity and responsibility.
Immediately following Religion without God's discussion of the obligation to obey general, nondiscriminatory laws that show “equal concern,” Dworkin provides a brief hint of how his framework might address the explosion of seeming conflicts between religious liberty and other rights and the question of exemptions. Government, he says, must “notice whether any group regards the activity it proposes to prohibit or burden as a sacred duty,” and if so, “must consider whether equal concern for that group requires an exemption or other amelioration,” if giving one can be done “with no significant damage to the policy in play.” Contrary to what actually happened in Massachusetts, for example, Dworkin writes that “financing Catholic adoption agencies that do not accept same-sex couples as candidates, on the same terms as financing agencies that do, might be justified in that way, provided that enough of the latter are available so that neither babies nor same-sex couples seeking a baby are injured.” But Dworkin also argues for the “priority of nondiscriminatory collective government over private religious exercise” as “inevitable and right.” For example, government may refuse an exemption when giving one “would put people at a serious risk that it is the purpose of the law to avoid” (RwG, 136–37).
I leave for analysis elsewhere the evident clash between religious liberty and marriage equality, and more generally, the issue of religious accommodation as new political majorities expand protection of persons from discrimination based on sexual orientation.Footnote 19 My focus here is how Dworkin's framework would apply to the numerous challenges brought to the ACA by religious institutions and, as in Hobby Lobby, even for-profit corporations. What if the “group” appealing to a “sacred duty” threatened by the ACA's requirements is the owner of a for-profit corporation? Should that corporation be eligible for accommodation? And if government is willing to accommodate it, suppose it then argues that even requiring it to comply with the process for receiving that accommodation denies it equal concern and forces it to be complicit in moral evil? What is at stake on the other side for female employees for whom health insurance is tied to employment? By what is “at stake” I mean to include not only the issue of those employees' own “ethical independence” but also the goals the underlying laws seek to achieve, such as fostering women's health, including preventive reproductive health.
Some clues may be available from Dworkin's sharp critiqueFootnote 20 of Justice Kennedy's majority opinion in Citizens United. Corporations, Dworkin insisted, “have no ideas of their own.” Aligning himself with Justice Stevens's lengthy dissent, Dworkin insisted that the concerns for “status, dignity, and moral development” that—in some views—ground free speech simply do not apply to corporations.Footnote 21 The majority's contrary interpretation of the First Amendment “undermines” a basic purpose of free speech, “to protect democracy.” Dworkin elaborated: “The nerve of [Justice Kennedy's] argument—that corporations must be treated like real people under the First Amendment—is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.”Footnote 22
In a follow-up essay, Dworkin submitted that the majority's opinion, which “repealed a century of American history and tradition” about limits on corporate spending on elections, lacked any “principled account of the First Amendment's point.”Footnote 23 Characteristic of his “moral reading” approach to constitutional interpretation, Dworkin insisted that the First Amendment, “like many of the Constitution's most important provisions, is drafted in the abstract language of political morality;” therefore, interpretations by justices must be “guided by principles”—“by some theory of why speech deserves exemption from government regulation in principle.” None of those theories, Dworkin argued, supported the majority's decision in Citizens United, which, instead, inflicted “damage” on “our politics.” Dworkin reiterated that “[c]orporations have no ideas of their own”; instead, corporate-funded ads will “promote the opinions of their managers,” using stockholder money to do so. The public may be misled by this corporate advertising because the volume of the ads may suggest “more public support that there actually is” for the opinions the ads express; in reality, “[m]any of the shareholders who will actually pay for the ads, who in many cases are members of pension and union funds, will hate the opinions they pay to advertise.”Footnote 24
Dworkin also critiqued Citizens United through the lens of another important theory of why free speech matters: “to protect the status, dignity, and moral development of individual citizens as equal partners in the political process.” For that theory, Dworkin quoted Stevens's observation in his Citizens United dissent that “one fundamental concern of the First Amendment is to ‘protec[t] the individual's interest in self-expression.’”Footnote 25 Justice Kennedy attempted to enlist this justification on behalf of corporate free speech by arguing that in “taking the right to speak from some and giving it to others . . . the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice,” but Dworkin found this to be “bizarre,” explaining,
The interests the First Amendment protects, on this second theory, are only the moral interests of individuals who would suffer frustration and indignity if they were censored. Only real human beings can have these emotions or suffer those insults. Corporations, which are only artificial legal inventions, cannot. The right to vote is surely at least as important a badge of equal citizenship as the right to speak, but not even the conservative justices have suggested that every corporation should have a ballot.Footnote 26
Dworkin returns to the distinction between individuals and corporations and to who can possess dignity later in the essay, when he observes that “[i]ndividuals speak and spend for themselves, together or in association with other individuals, while corporations speak for their commercial interests and spend other people's money, not their own. . . . Individuals have rights, on which their dignity and standing depend, to play a part in the nation's government; corporations do not.”Footnote 27 Once again, Dworkin observes, “[n]o one thinks corporations should vote, and their rights to speak as institutions have been limited for over a century”Footnote 28—until Citizens United.
Given Dworkin's strenuous critique of Citizens United, what would he say about Hobby Lobby? Is a family-owned, closely held, for-profit corporation such as Hobby Lobby distinct from a publicly owned corporation? Does this distinction make a difference? Do family members who own such a corporation suffer frustration and indignity when the ACA requires them to fund insurance plans for their employees that include forms of contraception they find morally objectionable? Does the ACA threaten their ethical independence? If a Dworkinian approach would answer “yes” to either of those questions, then should corporations like Hobby Lobby be exempt from the ACA? Or do the interests at stake on the other side, including the ethical independence and reproductive health of female employees and government's powerful interest in providing preventive health care for women, argue against such accommodation? Can accommodation be offered without “injuring” these women? And, finally, is the accommodation process itself forcing religious companies to be, in their view, “complicit” in evil?
PART II: THE HOBBY LOBBY BRIEFS: RIGHTS IN CONFLICT?
In this part, I consider how the parties and friends of the court presented to the Court, in their legal briefs, the rights of the corporations challenging the ACA, the rights and needs of the female employees, and the governmental interests at stake in the ACA.Footnote 29 A procedural point may be helpful: the owners of Hobby Lobby and of the other two corporations sued the Department of Health and Human Services and other federal agencies and officials under RFRA and the First Amendment to enjoin application of the ACA's contraceptive mandate to them with respect to four Food and Drug Administration (FDA)-approved contraceptive methods that they believed “may operate after the fertilization of an egg.”Footnote 30 The female employees of these companies were not official parties in the case; their interests would be affected by the lawsuit's outcome, and so many briefs addressed those interests. In canvassing these briefs, I bear in mind Dworkin's proposed shift from a special right to religion to a general right to ethical independence.
Ethical independence, as explained earlier, requires that government not favor a specific way of life, including the religious beliefs of one group. The shift from a special right to religious freedom to a more general right to ethical independence also levels the playing field. As applied to this conflict, female employees who wish to use certain forms of contraception may be exercising their ethical independence, just as their corporate employers who object to providing such contraceptives do so out of an ethical belief that such contraceptive methods are tantamount to abortion. Protecting ethical independence requires that government leave individual citizens to decide their way of life for themselves, rather than restricting their freedom on the assumption that one way is “intrinsically better than another” or that “people who live that way are better people.” Government may, nonetheless, restrict freedom for other reasons, such as protecting other people from harm and advancing the general welfare (RwG, 130–31). How does the ACA look when measured against these requirements?
In Support of Religious Free Exercise by For-profit Corporations
Friend of the court briefs (amicus briefs) submitted in favor of Hobby LobbyFootnote 31 argued for broad and deferential protection of religious rights and sought protection for the right of conscientious objection. They argued that religious exercise should include “all activities or policies grounded in sincerely held religious beliefs,”Footnote 32 and that the test for whether an activity constitutes a religious belief should be “whether the specific activity or policy furthers a sincerely held religious purpose or belief of the organization.”Footnote 33 The Council for Christian Colleges and Universities argued that corporations can pursue profit while simultaneously exercising religion because protected beliefs and conduct must only “be rooted in religious belief.”Footnote 34 As long as conduct is so motivated, then it “must be at least presumptively protected by the Free Exercise Clause.”Footnote 35
Amici for Hobby Lobby also argued against a restrictive definition of “religious organizations” that focused only on the relationship between houses of worship and their clergy members, which would exclude most religious employers like hospitals, homeless shelters, and schools.Footnote 36 Moreover, they challenged the constitutional significance of the distinction between the for-profit and nonprofit corporate form: given that Americans “routinely exercise their constitutional rights in the corporate form . . . discriminating against those who choose to do so in the for-profit context has no constitutional foundation.”Footnote 37 Prominent church-state scholar Michael McConnell filed a brief on behalf of the Christian Booksellers Association and other for-profit Christian enterprises, arguing that the understanding of the Free Exercise Clause at the time of the founding was that it protected “acts of religious exercise by institutions as well as individuals,” evidenced by the fact that, in drafting the First Amendment, “Congress deliberately replaced protection for individual ‘conscience’ with the concept of free ‘exercise’ of ‘religion.’”Footnote 38 Although the “modern business corporation” had not yet come into being, “from the very founding of the colonies, it had been well understood that a corporate charter can combine religious and profitable purposes.”Footnote 39
These briefs stressed that religion cannot be cabined, that is, “confined to the four walls of a church or to the private life of a believer.”Footnote 40 Rather, religious individuals will incorporate—or integrate—their beliefs and principles into all aspects of their personal and professional lives, including forming businesses to embody and promote the values central to their faith.Footnote 41 Amici further argued that, recognizing “an individual may ‘exercise’ religion in virtually every phase of life,” the Supreme Court “has declined to cabin free exercise rights to any particular activity.”Footnote 42
Following from this image of infusing religion into all spheres of daily life is the argument that, when religious believers use the corporate form, the resulting corporate entities exercise an institutional conscience, and their activities should be viewed as forms of religious exercise. For example, the Pacific Legal Foundation asserted that a corporation's shareholders and directors “consider it important for the corporation to as an institution act in accordance with their moral values, just as they find a value in the institution expressing an opinion or owning property in its own name.”Footnote 43 Charles E. Rice, a scholar of issues of constitutional law and morality at the University of Notre Dame, argued that a corporation or business is ultimately a means—a tool—to achieve an end, and, thus, the person guiding a corporation must be responsible for any immoral end achieved through that corporation, just as that person would be responsible for the use of a gun, car, or other person.Footnote 44
Hobby Lobby invoked conscience in making the same argument about responsibility for immorality, insisting: “the Greens cannot in good conscience direct their corporations to provide insurance coverage for the four drugs and devices at issue because doing so would ‘facilitate harms against human beings.’”Footnote 45 Hobby Lobby also contended that the ACA's financial penalties for noncompliance with the contraceptive mandate, “like threats against one's home, bank account, or unemployment check—can obviously impose unbearable pressure” on its business, thus directly burdening the Greens' religious exercise.Footnote 46 In support of Hobby Lobby, the Thomas More Law Center emphasized the need to avoid the forced “sacrifice” of faith and conscience for livelihood, contending that “[t]he Mandate requires religiously objecting employers . . . to choose—they can follow their conscience and accept financial ruin, or they can obey the government and risk eternal consequences.”Footnote 47 The premise of these arguments is that because religious belief pervades every decision of corporations like Hobby Lobby, the right to choose not “to use, purchase, and facilitate contraception and abortion” is essential to avoid this forced sacrifice. Moreover, as the Pacific Law Foundation contended, “any effort to distinguish” between “for-profit” and “non-profit” corporations with respect to which entities “can . . . and cannot assert Free Exercise rights” is “unsupportable”; rather, “individuals who participate in a corporation often direct their business conduct—or seek to influence corporate conduct—in accordance with religious values,” and, in so doing, “their corporations exercise First Amendment rights.”Footnote 48
Amici also argued that, through the ACA, government is legislating a contested and controversial morality. The ACA controversy presents, the Thomas More Center argued, a “clash between anti-discrimination principles and the First Amendment” that “is particularly volatile when a morally controversial practice is protected and religious persons or groups are swept within the ambit of the law.” The Center asserted: “Government has no right to legislate a particular view of sexual morality and compel religious institutions and individuals to facilitate it.”Footnote 49 Dworkin argues, in Religion without God, that government may not legislate based upon a view of the superiority or inferiority of particular ethical views (RwG, 130–31), but, as he elaborated elsewhere, government may legislate morality, that is, political morality, in ways that restrict freedom, subject to the requirements of equal concern and respect.Footnote 50 Given his argument that the liberal position on abortion rights “becomes mandatory” if one accepts this general right to ethical independence, how might a Dworkinian respond to this charge that the ACA legislates morality?
Consider, in this regard, a related theme in many briefs filed in support of Hobby Lobby—namely, that allowing corporations to exercise their conscience through their business decisions is consistent with the strong American tradition of protecting conscientious objectors.Footnote 51 Notably, Dworkin discusses the Supreme Court precedents about conscientious objection to the Vietnam War in illustrating recognition of a “religious attitude” not confined to religious beliefs (RwG, 119–21).Footnote 52 Amici appealed to a long history of protecting conscientious objectors to war, capital punishment, assisted suicide, and abortion,Footnote 53 including, more recently, a 2012 federal appropriations law forbidding agencies from denying funding to health care entities that refuse to provide services related to abortions.Footnote 54 In contrast, the Brief of the Public Policy Women's Groups asserted, “By forcing conscientiously opposed individuals and organizations to participate in abortion, the Mandate transforms abortion ‘culture wars’ into abortion ‘conscience wars.’”Footnote 55 In doing so, the “Mandate” prefers some women over others, advancing “the interests of only that subset of women who value free abortion drugs above public goods such as religious freedom and limited government,” while “work[ing] against the interests of those free-minded, independent women whose personal, moral, and political values lead them to support a different balance of policy considerations.”Footnote 56
In sum, these briefs argue for a broad definition of religion and religious activity that allows Hobby Lobby to follow its corporate conscience. Such protection of conscience is a value that, implicitly, must be favored more highly than government's interest in providing reproductive health care to Hobby Lobby's female employees because, otherwise, religious employers risk losing their ability to live their lives and run their business most in line with their religious beliefs. The federal mandate to provide for certain health care services, in other words, must lose in this hierarchy of values. In terms of Dworkin's ethical independence framework, these arguments protest government imposing a controversial “morality” on them, but fail to address the costs to women and their health if they prevail in insisting that Hobby Lobby and similar corporations must be free to exercise their conscience in the public sphere, or rather, in the sphere of employment and commerce.
In Support of Women's Right to Reproductive Health Services
In line with Dworkin's concept of “ethical independence,” parties who filed friend of the court briefs in support of the United States Department of Health and Human Services (HHS) (and, thus, the contraceptive mandate) argued that even assuming that corporations could have religious beliefs, how far government should go to protect those beliefs must factor in the importance of woman's reproductive liberty and choice and the role access to contraception plays in that liberty.Footnote 57 For example, the State of California filed a brief emphasizing the importance of women's “personal dignity and autonomy” and professional and economic equality.Footnote 58 Access to contraception is an essential health care service, amici insisted, and any accommodation of companies like Hobby Lobby must not be at the expense of that access. For example, a brief submitted by experts in foreign and comparative law argued that both the health of a woman and her family and a woman's future autonomy depend upon her access to reproductive health services. Offering examples from other legal systems, they argued that protection for conscientious objectors must pair with a guarantee that patients can nonetheless access essential health care services.Footnote 59
Briefs filed in support of HHS expressed worry that the costs of accommodating Hobby Lobby's religious beliefs would be borne by its female employees, who would either be forced to pay the out-of-pocket costs for the excluded contraceptive methods or forgo access to them.Footnote 60 To allow such burden shifting would, as a brief filed by church-state scholars asserted, “privilege religion, and the religion of the particular owners, over the rights of those who do not share those beliefs. Such discrimination has no place in the United States.”Footnote 61 A health organization similarly argued that a woman's right to choose and seek preventative health care must not be “skewed by the religious views of the for-profit employer providing the woman's health coverage, which may deny coverage for these potentially life-saving treatments.”Footnote 62
In its brief, HHS argued that the ACA did not violate RFRA, since the Green family, the owners of Hobby Lobby, were not required (as individuals) directly to provide health insurance to Hobby Lobby's 13,000 employees. RFRA, it explained, does not prevent indirect burdens on religious exercise arising “when one's money circuitously flows to support the conduct of other free-exercise wielding individuals who hold religious beliefs that differ from one's own.”Footnote 63 This formulation captures the idea that Hobby Lobby's female employees also have—to use Dworkin's frame—a right to ethical independence, and exercising it may require access to contraception. Amici supporting HHS agreed with its reading of RFRA, stressing that the ACA, in requiring that insurance be made available, was not “taking sides” in favor of or promoting its use. As Lambda Legal Defense and Education Fund, Inc. explained, “[i]nstead of endorsing or promoting any particular choice of treatment for particular health conditions, inclusion of coverage for multiple care options simply allows employees to pursue wellness with medical guidance based on individual needs, past experiences, and their own life goals.”Footnote 64
This formulation links health and wellness to a woman's broader view of how to exercise her responsibility to live her life well (RwG, 2). Dworkin argues that a “paradigm” religious value uniting believers and “religious atheists” is that “it matters objectively how a human life goes and . . . everyone has an innate, inalienable ethical responsibility to try to live as well as possible in his circumstances” (RwG, 24). The problem with this Dworkinian argument, from the perspective of Hobby Lobby and its supporters, is that precisely because it matters how a human life goes, once begun, an employer opposed to contraception who provides wages that may be used to pay for abortifacients has enabled an immoral outcome. Professor Rice, thus, asserted that, while “[i]t is not reasonable to say that an employer who pays his employees wages has any specific intent regarding how the employees spend those wages,” nonetheless, “it is . . . reasonable to say that the employer who provides a means to pay specifically for abortifacients is acting specifically to assist his employees to pay for, and thus obtain, abortifacients” and has an “intent” to enable them doing so.Footnote 65
Briefs filed in support of HHS offered two lines of argument that respond to this idea of corporate responsibility. First, they insisted that protecting employees' conscience and faith required limits to the reach of an employer's control. Thus, the Brief of Religious Organizations asserted:
Just as an employer may not control how employees use their wages, an employer may not supervise employees' use of their health-benefits compensation . . . [w]hether to buy or use birth control is an employee's own decision, using her own compensation, in consultation with her own physician, and guided by her own religious beliefs.Footnote 66
The emphasis, in this quoted passage, on the female employee as decision maker echoes the Supreme Court's formulation of the constitutional protection of a woman's right to decide whether to terminate her pregnancy, in consultation with her physician,Footnote 67 and, as we shall see, also features in Justice Ginsburg's Hobby Lobby dissent. As with the abortion debate, some women supporting Hobby Lobby challenged the premise that contraceptive access is an indispensable element of women's health and equality. Thus, a brief submitted by law professor Helen Alvaré, a prominent critic of the right to abortion, on behalf of Women Speak for Themselves asserted: “To agree with HHS that contraception and ECs [emergency contraceptives] are indispensable to women's equality is to deny that society could find another way to assure respect for women's innate equality while simultaneously accommodating their aspirations both to be mothers and to be economically and politically integrated into society.”Footnote 68 This group charged that it is “demeaning to women to suggest that women's fertility and their bearing and rearing of children, are ‘barriers’” to women's opportunity and workplace participation.Footnote 69
A second argument supporters of the ACA made about corporate responsibility was that certain consequences flow from the decision by religiously motivated, for-profit corporations to participate in the market and commercial activity, including compliance with laws like the ACA. Some briefs framed this in terms of the collision between employer conscience and employee-protective laws: “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”Footnote 70
In sum, arguments in favor of HHS insisted that Hobby Lobby's religious exercise rights should not outweigh women's access to reproductive health care services. Relating this back to Dworkin's proposed frame of ethical independence, the case for the ACA's mandate would stress that government is not restricting Hobby Lobby's freedom out of a view that “one conception of how to live, of what makes a successful life, is superior to others,” but out of a conviction that providing employees access to a full range of preventive health services, including contraception, is essential to promoting health. The policy leaves the choice whether to use contraception in the hands of individual women. Hobby Lobby's supporters, nonetheless, would counter that the view that contraception is a component of health care prefers certain ethical views over others, but Dworkin, most likely, would argue that the ACA protects ethical independence by not withholding or compelling use of contraception, but leaving it to individual employee choice.
Central themes in Dworkin's legal and political philosophy are the hedgehog's “value holism” and integration.Footnote 71 Thus, he insisted that people cannot readily leave their deepest convictions behind when they enter into the political realm.Footnote 72 Might he, given these commitments, be sympathetic to the argument that when religious people enter the market, they wish their business practices to reflect their deepest values? If Dworkin accepted this rejection of a limited sphere for exercising religion – or living out one's view of what makes for a successful life—and found persuasive the argument that Hobby Lobby's participation in the ACA made its owners complicit in immorality, his framework would support accommodation “if an exception can be managed with no significant damage to the policy in play” (RwG, 136). As it turns out, the Supreme Court made precisely this assumption about accommodation in ruling for Hobby Lobby, even as it did not reach the question of whether the accommodation provision was itself a threat to religious liberty under RFRA.
PART III: THE HOBBY LOBBY OPINIONS: ON CORPORATE CONSCIENCE AND WOMEN'S REPRODUCTIVE HEALTH
The legal commentary on Hobby Lobby is already extensive.Footnote 73 My focus here is limited to considering how the various opinions by members of the Court fare when examined through the lens of Dworkin's proposed shift from a special right to religious freedom to a more general right to ethical independence. Does a corporation have such a general right? If so, how far should that right be protected? Themes articulated in the party and amicus briefs, discussed in Part II, appear in the various opinions. Left unaddressed in Hobby Lobby is the question wending its way through the lower federal courts and which the Court may ultimately address: whether the accommodation that the ACA affords religious institutions survives under RFRA.Footnote 74
The Hobby Lobby Majority: A For-Profit Corporation Has Free Exercise Rights
I begin with the conclusion: a five-member majority of the Court, in an opinion written by Justice Alito, holds that the ACA's requirement that “three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies owners” violates RFRA, “which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.”Footnote 75 For purposes of its analysis, the Court assumes (while expressing some doubt) that the government did have a compelling interest in guaranteeing that all women have access to all FDA-approved contraceptives without cost sharing, including the four challenged contraceptive methods.Footnote 76 The flaw under RFRA, the Court holds, was that the federal government could have furthered this end in a “less restrictive” way: by offering Hobby Lobby the accommodation it offers “nonprofit organizations with religious objection.” Under the federal regulations, if an organization certifies that it “opposed providing coverage for particular contraceptives services,” then the organization's insurer or third party administrator “must ‘[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan’ and ‘[p]rovide separate payments for any contraceptive services required to be covered’ without imposing ‘any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.’”Footnote 77
The real action in the Court's opinion is its conclusion that RFRA protects for-profit corporations and that the ACA's requirements constitute a substantial burden on their religious exercise. Since Dworkin believed RFRA was wrong as a matter of political morality, he would likely be critical of the Court's reliance on it. Further, given his emphatic disagreement with the Court's ruling, in Citizens United, that for-profit corporations are “persons” possessed of First Amendment rights of free speech, he would likely be sharply critical of the Hobby Lobby majority's expansive reading of RFRA to protect free exercise rights of such corporations. Does the fact that Hobby Lobby and the other companies before the Court were family owned and closely held, rather than public, make a difference? Can such corporations have a conscience?
The majority, in effect, dissolves the corporate form to reach the devout Christian people behind it, telling the story of Norman and Elizabeth Hahn and their three sons, “devout members of the Mennonite Church,” who began what grew to be Conestoga Wood Specialties. So, too, it traces the origins of Hobby Lobby to David and Barbara Green and their three children, “Christians” who first started out with one arts-and-crafts store that has grown “into a nationwide chain” of 500 stores and 13,000 employees.Footnote 78 Both families seek to conduct business in ways that reflect their religious commitments, the majority observes, quoting Hobby Lobby's statement of purpose committing the Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles” and the Hahns' belief that “they are required to run their business ‘in accordance with their religious beliefs and moral principles.’”Footnote 79 Thus, the Conestoga board adopted a “Statement on the Sanctity of Human Life,” asserting that “human life begins at conception” and that it is “against [their] moral conviction to be involved in the termination of life” after conception, which is a “sin against God to which they are held accountable.”Footnote 80 So, too, the Greens believe life begins at conception and that “it would violate their religion to facilitate access to” the four contraceptive methods at issue since they “operate after [the] point” when life begins.Footnote 81
The majority reasons, thus, that when RFRA and the First Amendment protect “the free-exercise rights of corporations like Hobby Lobby [and] Conestoga,” they protect “the religious liberty of the humans who own and control these companies” or are “associated with a corporation in one way or another.” A corporation is simply a “fiction to provide protection for human beings,” a “form of organization” used by “human beings” to achieve certain ends. Separate from the human beings who “own, run, and are employed by them,” the Court sums up, corporations “cannot do anything at all.”Footnote 82 Strikingly, this vision of the corporation includes not only the owners but the employees—whose rights under the ACA were at issue in the case. By analogy to Citizens United, Dworkin would likely have agreed with Justice Ginsburg, in dissent, that such employees may not share their employers' religious vision and yet are, in effect, bound by it.
The majority rejects the distinction between nonprofit and for-profit corporations, with respect to the “principle” the dissent argues undergirded protecting the religious “autonomy” of the nonprofit corporation—that such protection “often furthers individual religious freedom as well”; it contends that principle applies equally to for-profit corporations.Footnote 83 The fact that a for-profit corporation makes money does not mean it cannot have other purposes, the Court argues, pointing to how for-profit corporations support “a wide variety of charitable causes” and also “further humanitarian and other altruistic objectives” through choices about how to operate. Why not, then, include furthering religious values and beliefs among those other “worthy” objectives?Footnote 84 The majority fends off HHS's argument that Congress could not have intended RFRA to apply to for-profit corporations, given the difficulty of determining the “sincere ‘beliefs’ of a corporation,” short of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporation such as IBM or General Electric.”Footnote 85 The majority states that there is no precedent of a publicly traded corporation asserting RFRA claims, and it seems “improbable” that, in such a corporation, “unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs.” Before it, the majority stresses, were three closely held corporations, owned and controlled by members of a single family, the sincerity of whose religious beliefs was not in dispute.Footnote 86 It was precisely this mixture of stakeholders in a large public corporation that Dworkin emphasized as a reason not to recognize corporations as persons with free speech rights, since that speech would likely reflect only the views of the managers, and some in that complex mix would “hate” the speech.Footnote 87 Dworkin might answer the majority that, while the sincere beliefs of the corporate owners of a for-profit closely held corporation were not at odds with those of their shareholders, they might well be at odds with their employees, who desire access to the contraceptives the owners find morally objectionable.
Turning briefly to the issue of burden, the majority rejects HHS's argument that the link between requiring the health insurance and the morally objectionable act—a woman employing a method of contraception that destroyed an embryo—was too attenuated to burden religious exercise.Footnote 88 The Court observes that the corporate owners' belief that HHS's rules would involve them in immorality raised a “difficult and important question of religion and moral philosophy”—“the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”Footnote 89 The majority insists that it was not the province of HHS or the Court to resolve this question or tell plaintiffs “their beliefs” about the correct answer are “flawed.” Instead, the relevant point is that, given their convictions that the ACA's requirements violate their beliefs and that the only alternative—providing health care consistent with their beliefs—would involve a financial penalty, there is a substantial burden on religious exercise. HHS could avoid that burden, the majority concludes, by extending to these for-profit companies the same exemption it provides to nonprofit religious institutions.Footnote 90 What would Dworkin do, using an ethical independence frame, in evaluating the majority's putting to the side the “difficult” question of “religion and moral philosophy” and focusing instead on the ease of accommodating Hobby Lobby and relieving the “substantial” burden on its free exercise? He would likely find that Congress's reasons for enacting the contraceptive mandate—ensuring women's access to preventive health care – did not violate employers' ethical independence. If he accepted the proposition that the contraceptive mandate nonetheless burdened what Hobby Lobby's owners felt was a “sacred duty,” then he would likely consider whether “equal concern” for them required an exemption if it could be managed “with no significant damage to the policy in play” (RwG, 136), an “if” about which Justice Ginsburg, in dissent, expresses doubt.
Dignity, Self-Definition, and the For-profit Corporation
Justice Kennedy's concurring opinion is striking not only for its characteristic appeal to “dignity”— also a central theme in Dworkin's work—but also for its conception of the spheres in which religious persons seek to live out their religious beliefs. In Religion without God, Dworkin challenges the idea that a particular account of divine creation (the “science” part of religion) tells us anything about the best way to live (the “value” part of religion) (RwG, 24–25). Many religious people and traditions, I have argued elsewhere, will disagree with his distinction, instead viewing the existence and work of a divine creator as highly relevant to the source and content of religious norms and laws and how to live life well.Footnote 91 Thus, Justice Kennedy also connects the two, arguing, “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.”Footnote 92
Kennedy further argues, “Free exercise . . . 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.”Footnote 93 Kennedy's language here resonates with Dworkin's emphasis on dignity, self-definition, and the integration of all our convictions with the exercise of our responsibility to live lives well. Self-definition, Kennedy insists, takes place in all the different spaces of society; this passage resonates with arguments by religion scholars and religious leaders (and Hobby Lobby's amici) who argue against marginalizing religious people by confining the proper exercise of religion to a church or synagogue. And yet, Kennedy continues, in a “complex society,” where government regulation is “pervasive,” “defining the proper realm for free exercise can be difficult.”Footnote 94 Here, as the majority assumes, the regulation at issue “furthers a legitimate and compelling interest in the health of female employees.” The problem, Kennedy concludes—echoing the majority opinion—is that HHS could still achieve this end without burdening religious liberty by accommodating these for-profit companies. Kennedy insists that RFRA does not support “distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of team the same accommodation.”Footnote 95
What would Dworkin say about this appeal to equal treatment of religious believers, or, to use his frame, of persons exercising their right to ethical independence? Given his sharp critique of Kennedy's recognition of corporate personhood in Citizens United, would he support treating for-profit corporations as the same, for purposes of religious exercise, as not-for-profits? Religion without God suggests accommodating religious entities would be appropriate, in certain circumstances; would that apply to Hobby Lobby? Dworkin, recall, argued that, in a case where providing an exemption would “put people at a serious risk of harm that it is the purpose of the law to avoid,” refusing an exemption “does not deny equal concern.” Rather, this “priority” of “nondiscriminatory collective government over private religious exercise seems inevitable and right” (RwG, 136–37).
What, then, might Dworkin make of Kennedy's argument that attempts to balance the interests at stake? On the one hand, Kennedy states, “among the reasons that the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government for exercising his or her religion.” On the other hand, “neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.”Footnote 96 Dworkin might well support this formulation. Then Kennedy concludes that these two priorities may be “reconciled” through “the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here”—the exemption process made available to not-for-profit religious institutions.Footnote 97 Would Dworkin support this conclusion? If he did, would he, nonetheless, be wary of the majority's caveat that, in proffering the accommodation provision as a less restrictive alternative, it was not ruling on whether that accommodation would survive review under RFRA? The dissent advances our understanding of those, and other, issues.
Health Care Choice Must Be in the Hands of Women
In a lengthy dissent joined by Justices Sotomayor, Breyer, and Kagan, Justice Ginsburg vigorously objects to the majority's expansive reading of RFRA and its disregard of the line between for-profit and not-for-profit corporations.Footnote 98 The “startling breadth” of the majority's decision, she begins, “holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”Footnote 99 Given Dworkin's argument that, if one accepts a general right to ethical independence, the “liberal position” on the constitutional right to early abortion becomes “mandatory,” it is notable that Ginsburg leads with the famous language from the Planned Parenthood v. Casey joint opinion (of which Kennedy was a co-author): “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”Footnote 100 With this framing, the dissent's narrative is not about devout business owners, but about how Congress remedied a “large gap” in the ACA's coverage—“preventive services that ‘many women's health advocates and medical professionals believe are critically important’”—through introduction and passage of the Women's Health Amendment.Footnote 101 Ginsburg details that subsequent coverage in the ACA grew out of recommendations of a group of independent experts convened by the Institute of Medicine; the report “noted the disproportionate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees without cost sharing.”Footnote 102
Another significant part of Ginsburg's recounting of how the ACA came to include such preventive health care for women is the unsuccessful effort to include a “so-called ‘conscience amendment,’ which would have enabled any employer or insurance provider to deny coverage based on its asserted ‘religious beliefs or moral convictions.’” Salient for Dworkin's broader reading of protection of ethical independence, Ginsburg observes in a footnote, “Separating moral convictions from religious beliefs would be of questionable legitimacy.”Footnote 103 In rejecting this “conscience amendment,” Ginsburg argues, Congress “left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.”Footnote 104 Intentionally or not, Ginsburg references the classic “who decides?” argument for women's reproductive liberty, but in this instance the choice is between women and their religious employers or insurers rather than between women and the state.
How to resolve the conflict between female employees and their employers is a focus of Ginsburg's analysis of Hobby Lobby's claim, first under existing Free Exercise jurisprudence (Smith) and then under RFRA. Under Smith, the ACA's contraceptive coverage requirement is a generally applicable law that “trains on women's well being, not on the exercise of religion,” and its effect, if any, on such exercise, is “incidental.”Footnote 105 Even without Smith, she argues: “Accommodations to religious beliefs or observances . . . must not significantly impinge on the interests of third parties”; the exemptions sought here would do so by “deny[ing] legions of women who do not hold their employers’ religious beliefs access to contraceptive coverage that the ACA would otherwise secure.” Ginsburg observes that, “[w]ith respect to free exercise claims no less than free speech claims, ‘[y]our right to swing your arms ends just where the other man's nose begins.’”Footnote 106
This analogy between free speech and free exercise is apt. As with Citizens United, protecting First Amendment rights of corporations comes at the expense of persons connected to the corporation who do not share the beliefs of the corporate managers—in this case the female employees who have different convictions about the use of certain contraceptive methods. Rejecting the Court's RFRA analysis, Ginsburg strenuously insists that the correct answer to the question, “Do for-profit corporations rank among ‘person[s]’ [under RFRA] who ‘exercise . . . religion,’” must be no.Footnote 107 Invoking Justice Stevens' partial dissent in Citizens United (which Dworkin, too, found so persuasive), she asserts: “Corporations . . . ‘have no consciences, no beliefs, no feelings, no thoughts, no desires.’”Footnote 108 Her analysis differentiates the spheres and manner in which religion may be exercised. Thus, the “shelter” that the Free Exercise Clause affords “churches and other nonprofit religion-based organizations” often furthers “individual religious freedom as well” because “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community.”Footnote 109 In contrast to the Court's “special solicitude” for the “rights of religious organizations,” there has been—appropriately—no comparable “solicitude” for “commercial organizations” and “religious exemptions had never been extended to any entity operating in the ‘commercial, profit-making world.’”Footnote 110 The logic for this distinction, Justice Ginsburg insists, relates to the respective purposes and compositions of religious organizations—“to foster the interests of persons subscribing to the same religious faith”—and for-profit corporations—“workers who sustain the operations of those corporations commonly are not drawn from one religious community.” Indeed, federal antidiscrimination law does not permit a for-profit corporation to use “religion-based criterion” to restrict its work force. While “religious organizations exist to serve a community of believers,” for-profit corporations employ “‘labor to make a profit,’ rather than to ‘perpetuate [the] religious value[s] shared by a community of believers.’”Footnote 111
But even if Hobby Lobby and Conestoga are deemed “persons” under RFRA, Justice Ginsburg argues, the ACA's requirements do not “substantially burden” their religious exercise because the “connection between the families' religious objections and the contraceptive coverage requirement is too attenuated.”Footnote 112 Requiring companies to “direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans” does not require these companies to “purchase or provide” the objectionable contraceptives; it is the “covered employees” who decide whether to “claim benefits under the plan.”Footnote 113 Certainly, employees who share their employers' religious beliefs are “under no compulsion to use the contraceptives in question.” By the same token, an individual employee who, informed by her physician, decides to use contraception covered by the plan is making an “autonomous choice” that is not “in any meaningful sense” Hobby Lobby's decision.Footnote 114 Here Ginsburg invokes autonomous choice to emphasize the interruption of any linkage between the corporations and the contraceptive use, while earlier she emphasized the choice must be the woman's to make.
Again arguing in the alternative, Ginsburg asserts that, even if the corporations meet the “substantial burden” requirement, the federal government's interests in “public health and women's well being” are “compelling”:
[T]he mandated contraceptive coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children[,] . . . helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening[,] . . . and secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain.Footnote 115
Furthermore, that the corporations object to “only 4 of the 20 FDA-approved contraceptives” does not make government's interests less compelling; intrauterine devices, for example, are, as Ginsburg notes, “significantly more effective, and significantly more expensive than other contraceptive methods,” while costing “nearly the equivalent to a month's full-time pay for workers earning the minimum wage.”Footnote 116
Given these compelling interests, Ginsburg reiterates that the Court must consider the burden accommodating Hobby Lobby and Conestoga would pose for their employees, adding that, “no tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect.”Footnote 117 Again, Ginsburg returns to a clash of rights or collision of liberties analysis: limitations on religious freedom “begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”Footnote 118 Dworkin, recall, argues that it is does not violate equal concern to refuse an exemption where granting it would “put people at a serious risk that it is the purpose of the law to avoid,” because this “priority of nondiscriminatory collective government over private religious exercise seems inevitable and right” (RwG, 136–37).
Critical of the majority's holding that “the contraceptive coverage requirement fails to satisfy RFRA's least restrictive means test,” Ginsburg counters that the federal government has shown “that there is no less restrictive, equally effective” alternative that would provide insurance coverage for the contested contraceptive methods and ensure that women receive them “at no cost to them.”Footnote 119 Once again, Ginsburg uses a clash of liberties or conflict of rights analysis, drawing on prior Supreme Court precedents to insist that “one person's right to free exercise must be kept in harmony with the rights of her fellow citizens, and ‘some religious practices [must] yield to the common good.’”Footnote 120 As applied to the present context: “A ‘least restrictive means’ cannot require employees to relinquish benefits accorded to them by federal law in order to ensure that their commercial employers can adhere undeservedly to their religious tenets.”Footnote 121 Ginsburg criticizes the two alternatives the Court puts forth: first, it floats the idea that the federal government could “assume the cost” of providing coverage, and second, it concludes that the government can simply offer for-profit corporations with religious objections the accommodation already provided to religious institutions. With respect to the latter, she astutely points out that the Court “hedges” on this “proposal,” since it does not decide “today” whether the very approach it says would provide a less restrictive alterative “complies with RFRA.”Footnote 122 Nor, for example, would counsel for Hobby Lobby commit to whether that “accommodation” was “acceptable.” As Ginsburg observes, Hobby Lobby and Conestoga “barely addressed” this possible solution, perhaps because religious nonprofit organizations were already challenging the adequacy of the accommodation.Footnote 123
In her conclusion, Ginsburg returns to the premise that the context of commercial activity matters in determining the scope of religious exercise. Drawing upon the Court's “pre-Smith” jurisprudence that, she argues, “RFRA preserved,” she highlights “two key points” that should apply to the instant case. First, “‘[w]hen followers of a particular sect enter into commercial activity as a matter of choice . . . the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” Second, “allowing a religion-based exemption to a commercial employer would ‘operat[e] to impose the employer's religious faith on the employees.’”Footnote 124 She translates: “the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraception in question,” but “[w]orking for Hobby Lobby or Conestoga . . . should not deprive employees of the preventive care available to workers at the shop next door”—certainly, she adds, not as a result of a judicial ruling, rather than clear guidance from the legislative or executive branch.Footnote 125 I believe Dworkin would likely concur with this part of Ginsburg's analysis, given his concerns over the consequences of Citizens United's recognizing corporate personhood and his insistence of the “priority” of “nondiscriminatory general government” (RwG, 137).
Ginsburg ends by observing that Hobby Lobby and Conestoga “do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs.” She illustrates with historical examples as well as present-day ones, such as the widely discussed case of Elane Photography, LLC v. Willock, in which a “for-profit photography business owned by a husband and wife refused to photograph a lesbian couple's commitment ceremony based on the religious beliefs of the company's owners.”Footnote 126 To avoid venturing into a “minefield” of future RFRA claims by for-profit corporations based on the ACA or other statutory schemes, Ginsburg urges that religious exemptions under RFRA be confined to “organizations formed ‘for a religious purpose,’ ‘engage[d] primarily in carrying out that religious purpose,’ and not ‘engaged in the exchange of goods and services for money beyond nominal amounts.’”Footnote 127
What Would Dworkin Do?
To return to this essay's opening question, what would Dworkin do if writing about Hobby Lobby, there are reasons to conclude that, as with Citizens United, he would write critically about the flaws of the majority opinion. Just as he found Justice Stevens' partial dissent in Citizens United more persuasive, it is likely he would praise features of Justice Ginsburg's dissent in Hobby Lobby. Dworkin might reject any distinction between public and privately-owned corporations, insisting that corporations—as artificial creations—had no ethical independence. But if he did accept that distinction, then, applying the ethical independence frame would certainly support treating the rights and interests of for-profit corporations' employees in reproductive self-determination at least as seriously as the religious convictions of the corporations' owners. If such for-profit corporations, then, might warrant accommodation, a Dworkinian analysis would turn, much as Ginsburg's dissent argued, on whether such accommodation could be done without injury to the public purposes advanced by the law and to the rights and interests of the third parties affected by the accommodation.
PART IV: UNFINISHED BUSINESS—IS ACCOMMODATION ACCOMMODATING ENOUGH?
If Dworkin were evaluating the likely import of Hobby Lobby for future challenges to the ACA, perhaps like Ginsburg and other dissenters, he might have alerted readers that what the majority in Hobby Lobby seemed to give—female employees could obtain contraceptive coverage without burdening their employers by using the exemption process—it might well take away, since it declined to reach the issue of whether the exemption provisions satisfied RFRA. Indeed, the proverbial other shoe dropped just a few months after Hobby Lobby, when the Court took the unusual step of granting an application by Wheaton College, a nonprofit liberal arts college, to enjoin the federal government from enforcing the exemption provisions against it, even before there was a lower court ruling on its legal challenge that the exemption violates its free exercise of religion under RFRA.Footnote 128 Wheaton College was clearly eligible for the religious-nonprofit exemption but objected to undertaking the exemption process itself, which required that it sign a form “certifying that it is a religious nonprofit that objects to the provision of contraceptive services,” and provide “a copy of that form to its insurance issuer or third-party administrator.”Footnote 129 It argued that this made it “complicit in grave moral evil,” since it was “religiously opposed to emergency contraceptives because they may act by killing a human embryo.” This argument, readers should appreciate, is made by numerous Catholic nonprofits challenging the ACA with respect to all forms of contraception and sterilization.Footnote 130 The majority of the Court gave that emergency relief over a lengthy dissent by Justice Sotomayor, joined by Justices Ginsburg and Kagan (perhaps not coincidentally the three female members of the Court).
Sotomayor argued that granting such emergency injunctive relief was “as rare as it was extreme,” and also inappropriate in the instant case, where “no one could credibly claim Wheaton's right to relief is indisputably clear.”Footnote 131 The dissent also castigated the majority for its retreat from the position in Hobby Lobby that the ACA's accommodation provision was a way to protect religious liberty while ensuring contraceptive access, asserting, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”Footnote 132
Sotomayor also spoke critically of the merits of Wheaton College's claim, asserting that its argument that simply filing a “self-certification form will make it complicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects” was not viable.Footnote 133 This accommodation process is “the least restrictive means of furthering the Government's compelling interests in public health and women's well-being.”Footnote 134 Invoking Ginsburg's Hobby Lobby dissent, Sotomayor emphasized that it is courts that must decide which religious burdens are too substantial to be borne, not the affected religious organizations (such as Wheaton College); simply “thinking one's religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.”Footnote 135 Therefore, although Wheaton may be troubled by the fact that it must participate in a larger process that results in providing contraceptives to its employees, this is not sufficient to constitute a substantial burden on its free exercise of religion.
To help explain “why Wheaton's complicity theory cannot be legally sound,” Sotomayor employed an analogy used by the Seventh Circuit in its rejection of the University of Notre Dame's similar claim.Footnote 136 If, during wartime, “there is a draft, and a Quaker is called up” and “tells the selective service system that he's a conscientious objector,” suppose, on being told “‘you know this means we'll have to draft someone in place of you,” he “replies indignantly that if the government does this, it will be violating his religious beliefs.” Does his refusal “trigger” drafting that replacement such that RFRA “would require a draft exemption for both the Quaker and his non-Quaker replacement”?Footnote 137 Writing for the Seventh Circuit, Judge Posner noted that counsel for Notre Dame said that “drafting a replacement indeed would substantially burden the Quaker's religion,” but that it was a “fantastic” suggestion.Footnote 138 Sotomayor explains that “the obligation to provide contraceptive services, like the obligation to serve in the Armed Forces, arises not from the filing of the form but from the underlying law and regulations.” Thus, Wheaton's religious rights are not substantially burdened by larger requirements that someone provide contraceptive coverage for its employees and students. Wheaton may object to a third party providing contraceptives to them, but the ACA requires that “some entity provide contraceptive coverage.” Therefore, such provision “would not result from any action by Wheaton.” The dissent reasons: “A religious nonprofit's choice not to be that entity may leave someone else obligated to provide coverage instead—but the obligation is created by the contraceptive coverage mandate imposed by law, not by the religious nonprofit's choice to opt out of it.”Footnote 139
Moreover, as the circuit courts have elaborated, the ACA's process “fastidiously relieves” objecting religious nonprofits from the contraceptive provision and disassociates them from such provision.Footnote 140 The circuit circuits emphasize that “[r]eligious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out.”Footnote 141 As the Seventh Circuit put it, “at bottom,” what religious nonprofits object to is Congress's passing of the ACA and the contraceptive mandate; however, under RFRA, they “have no right to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens” or to “prevent other institutions, whether the government or a health insurance company,” from engaging in acts they find offensive.Footnote 142
Arguably, under a Dworkinian frame of ethical independence, the conscience rights and ethical independence of Wheaton College and similar religious nonprofits cannot be analyzed in a vacuum: the ACA accommodates them with a minimally burdensome requirement of filling out a one-page form,Footnote 143 while also protecting the ethical independence and reproductive health of female students and employees. To find the accommodation itself too burdensome puts in jeopardy the ACA's objectives and the rights of those women to receive essential reproductive health care. Justice Ginsburg's Hobby Lobby dissent emphasized the importance of these rights. Drawing on the legislative record, the federal appellate courts elaborate on how cost-free, “seamless contraceptive coverage” furthered government's compelling twin interests in public health and women's well-being. By contrast, evidence suggests that “contraceptive use is highly vulnerable to even seemingly minor obstacles,” and so alternatives to the ACA's “seamless” accommodation process that imposed costs and delays could hinder women's contraceptive access.Footnote 144 Given high rates of unintended pregnancies, as one circuit court put it, “[p]ermitting women to control the timing and spacing of their pregnancies improves the health and welfare of women, children, and infants.”Footnote 145
Dworkin did not write about the contraceptive mandate, but, after the Court upheld most of the ACA, he observed that the United States “has finally satisfied a fundamental requirement of political decency that every other mature democracy has met long ago.”Footnote 146 Recall that Religion without God lists promoting the general welfare as a reason that government may restrict freedom. Almost assuredly, given his prior writing both on health care and on women's reproductive liberty, Dworkin would have found that a compelling part of that general welfare was ensuring women's access to preventive health care with respect to their reproductive lives. To invoke a classic Dworkinian idea, the legislative record and the jurisprudence on the contraceptive mandate demonstrate that, given the previous gaps in the health care system and the disproportionate burdens women experienced under that system, for government to treat women as equals with respect to mandating the provision of preventive health care, that preventive health care must meet women's distinctive health care needs (TRS, 227).
At this writing, numerous challenges brought to nonprofit religious institutions (including Wheaton College) are making their way through the federal courts. Although the Supreme Court has not yet accepted such a case for review, it seems likely that it will do so eventually. Perhaps Hobby Lobby will also encourage more for-profit corporations to challenge the ACA. And, so, the Court's religion jurisprudence will continue to evolve. As that happens, Religion without God’s argument for a new approach in that jurisprudence, along with the larger body of Dworkin's work, will continue to be instructive.
ACKNOWLEDGEMENTS
I thank M. Christian Green for her insightful comments and editorial suggestions, Boston University law student Jessica Lees for her excellent research assistance on this essay, and Stefanie Weigmann, assistant director for Research Faculty Assistance, and Technology, Pappas, Law Library, for valuable help with citations.
