I hear your voices in the distance [on my newsfeed] supporting Hobby Lobby’s complaint that the company’s freedom of religion is being violated by the ACA/Obamacare birth control provision.  I have seen your commentary about protecting religious freedom in America.  I have also reviewed the documents, so I know that before mandatory full payment for women’s preventative health care became controversial, Hobby Lobby was paying for the now-objectionable emergency contraceptive coverage.  It only changed its plan once it discovered this was an issue.  And I’m not making any assumptions here – perhaps Hobby Lobby’s owners didn’t realize what they were paying for until these news articles came out and they took a look at their own plan.

I love shopping at Hobby Lobby, but I’m a little confused about why so many people are jumping on this bandwagon.  I’m not expressing a position on the nature of human sexuality or the social or moral value of contraception [not that I don’t have one, mind you . . .], but I do think we should examine an issue before choosing the side of “Devout Christians,” as the Becket Fund has classified its supporters.  I’d also like to support Hobby Lobby putting its 1.3 million dollars per day into the mouths of hungry poverty-stricken children instead of paying fines to the government while it fights against the violation of a right it may or may not actually have.

So, with that said, let’s talk about the Constitution.  Just for a few minutes, without checking all of my law books and citations and shepardizing cases and so on, let me just put some things out there.  The first amendment and the freedom of religion can be kind of tricky, but the basic principles really aren’t as complicated as they may seem.

I’ve pulled my bar exam notes for you, to talk about a few sticky bits but honestly handle only the very basic issues.  The bar exam is not exactly the most sophisticated or nuanced thing.  We don’t cite cases or prepare briefs – we simply apply basic principles to relatively straightforward fact patterns to show that we have a handle on how the law works.  So what you’re about to read is not exactly rocket science, and is certainly NOT LEGAL ADVICE.  [If it alarms you that this is the simple kind of analysis used to pass an exam that qualifies one individual to hold the personal freedoms and, sometimes, the life of another in his or her hands, don’t worry.  It shocked the rest of us too.  We aren’t entirely sure we are qualified to be lawyers either.]

So here’s one of the most important things you can know as an American citizen:  The constitution does not protect your right to do whatever you want, whenever you want, however you want, no matter what.  I know, I know, THIS IS AMERICA.  But seriously, that’s just not how it works.

As a religious individual, you have two specific protections granted by the first amendment regarding your religious-ness.  There are other protections, like the freedom to associate with those you choose, that are also essential to religious expression, but let’s forget about those and focus on the “freedom of religion” piece of Amendment Numero Uno.

1)      The Establishment Clause.  This clause prohibits the government from making a law or operating a program that favors one religious faith over another or names one religious faith as the faith of the country.

2)      The Free Exercise Clause.  This clause prohibits the government from enacting a law or program that is based on hostility to a religious faith.

This second clause applies here, so let’s dig a little deeper.

The government is not prohibited from making a law that inadvertently inconveniences religious expression if the purpose of that law is something other than hostility to the inconvenienced religious expression.

For example, when the purpose of a law is to protect the health and safety of the citizenry and applies to the general public, there is no violation of the first amendment even if that law happens to prohibit a religious practice of a certain group.  There is certainly a limit to this.  If the religious practice is not merely inconvenienced by the rule, but the complaining party’s religious expression is substantially burdened by the rule, and the party shows this substantial burden, the rules change.  Once a substantial burden is proven, the law can only be upheld if it (a) furthers a compelling governmental interest and (b) is the least restrictive means of furthering that interest.  This only comes into play after a substantial burden is shown.

What is a substantial burden?  That’s a hard question to answer.  There’s not necessarily a perfect formula for finding one.  What we know so far from this case is that the courts are not satisfied enough with Hobby Lobby’s argument to grant an injunction.  There are a few issues at play, which we will know more about as the case moves forward.

  • The court explained that Hobby Lobby’s funding of a group health plan that “might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion” wasn’t enough to show a substantial burden at the injunction stage.  They wrote that the relationship between Hobby Lobby and the use of contraception was too attenuated — too far removed to be a substantial burden on Hobby Lobby.  We will see how this develops during the rest of the case.
  • The court also noted that a secular company does not have a right to religious expression that can be substantially burdened.  And that’s a new and interesting idea, which will most likely be hotly contested in the forthcoming litigation.  Read the opinion here, and skip to pages 10-12 for the corporate rights question.

So there it is, you guys, one of my first law-related posts in a pretty long while.  I’m interested in the issues from academic and religious perspectives, and hope this break-down is helpful without being too simplistic.  Feel free to leave comments and/or corrections to my hastily written summary.  And happy first-day-after-the-fiscal-cliff!

Let’s talk about Hobby Lobby
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  • Thank you for this reflection. I do wonder about how the constitution is applied in such cases when Christianity has a broad, diverse spectrum. For example, you mention the clause “devout Christians.” I would offer that such is a phrase from (and used primarily by) the religious right. Now, I may feel particularly devout in my own personal faith journey, but I would not use such language as a progressive/liberal/leftie Christian. And my friends on the Religious Right would not even consider me devout, due to my lack of following their doctrine.

    Anyway, while Hobby Lobby may feel that their Christian values are being impinged upon, I do not feel the same. So if other Christians, like me, do not have a problem, then is there a case? How would a court survey the breadth of Christian denominations, or is it only a matter of a particular faith group having their sense of religion challenged??

    • The short answer is that it would be the religious expressions of the persons bringing the law suit that matter for this particular case. The question is not if the law substantially burdens Christianity, but if it substantially burdens the rights to religious expression of Hobby Lobby.

      This is exactly where things get interesting here — Hobby Lobby the company is a different entity than the persons who own Hobby Lobby. Does the corporation of Hobby Lobby have any rights to religious expression? (The District Court said no, companies don’t have those rights, only people do.) And even if Hobby Lobby could have a right to a religious expression, how would the court test it? Companies don’t have church memberships or go to bible studies or get baptized or take communion, so how would the court decide if the company’s religious expression was substantially burdened?

      I’m not really sure what that inquiry would look like, but it’s very interesting to me.

      • Thank you, your reply is helpful!

  • Pingback: Status Update: Hobby Lobby, Corporations, and Religious Expression | pink-briefcase()

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