If you are not trapped under something heavy, you’ve probably seen the headlines. The Supreme Court ruled, in Burwell v. Hobby Lobby Stores Inc., that closely-held corporations do not have to provide health insurance benefits that include certain types of birth control, despite a federal rule obligating employers to do just that, if providing such coverage would violate the sincerely-held beliefs of the owners. The case raises a lot of important issues—about women’s interest in health care; about the exact nature of corporate personhood; about guidance-free precedent; about whether the Justices were playing favorites with particular religious beliefs; and so on. I won’t bother to recap everything. But I want to highlight two issues in particular.
First, I find it interesting that Justice Alito’s majority opinion says that “[T]he plaintiffs . . . . assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity.” It’s not clear to me whether Alito is merely adding the latter point for emphasis, or whether a credible allegation of insincerity could, in fact, have swayed the result.
It turns out there may be good reason to doubt the sincerity of the Greens, the family that owns Hobby Lobby. It’s been reported in the press at least since 2010 that Hobby Lobby’s business model is intrinsically and unavoidably tied up with buying goods from China, a nation that forces its citizens to have abortions, in large numbers and in hideous ways. More recently it was reported that Hobby Lobby invests its workers’ 401k’s in companies that manufacture the very contraceptive products at issue in the case. Forbes‘s Rick Ungar finds this outrageous:
You may be thinking that it must have been beyond Hobby Lobby’s reasonable abilities to know what companies were being invested in by the mutual funds purchased for the Hobby Lobby 401(k) plans—but I am afraid you would be wrong.
Not only does Hobby Lobby have an obligation to know what their sponsored 401(k) is investing in for the benefit of their employees, it turns out that there are ample opportunities for the retirement fund to invest in mutual funds that are specifically screened to avoid any religiously offensive products.
To avoid supporting companies that manufacture abortion drugs—or products such as alcohol or pornography—religious investors can turn to a cottage industry of mutual funds that screen out stocks that religious people might consider morally objectionable. The Timothy Plan and the Ave Maria Fund, for example, screen for companies that manufacture abortion drugs, support Planned Parenthood, or engage in embryonic stem cell research.
Apparently, Hobby Lobby was either not aware that these options existed (kind of hard to believe for a company willing to take a case to the Supreme Court over their religious beliefs) or simply didn’t care . . . .
For those wondering if the family is personally participating in the 401(k) program, I have been unable to get anyone at Hobby Lobby to confirm or deny the same. However, it would be highly unlikely that, as officers of the company, the Greens would not be participating in the 401(k) plan as they are employees of the corporation.
Of course, it would be nearly impossible for Hobby Lobby to operate without buying goods from China, and unlike Ungar I’m willing to entertain the idea that the Greens simply didn’t understand where their 401(k) investments were going. Those facts, in themselves, argue that it’s very, very hard to be doctrinally pure in an interconnected world—just like, for example, even vegans kill sentient life to feed themselves. Humans are like that—we create rules and categories that seem clear and enforceable, and then we find out that life is too complicated. I get it. And so, I hope it’s clear, I level no personal condemnation at the Greens for their inconsistency in this matter. I don’t think it makes them particularly insincere. It just means that, like most of us, they have ideals that they fall far short of, and they are to some extent self-blinding about the degree of their own moral failures. Let he who is without sin etc.
But the law, like religion, often demands more clarity than reality allows for. I think it entirely possible that the Hobby Lobby case could have been killed on grounds of insincerity. It’s not common for courts to inquire meaningfully into the sincerity of a plaintiff’s beliefs, probably because the government rarely challenges that sincerity, but doctrine does allow for it in at least some circumstances. (Kevin Brady argues here that courts should adopt a formal sincerity test for RFRA, the statute Hobby Lobby was decided under.) So it’s surprising to me that the government didn’t pursue this line of attack. I can think of a few reasons why they didn’t:
– They didn’t have the information, and they didn’t think to look for it. I imagine it can be quite hard to think outside the framework you’ve been handed when you’re in the heat of litigation, and Hobby Lobby’s lawyers framed the debate around their clients’ sincere beliefs. Maybe it just never occurred to anyone at the Solicitor General’s office to challenge that framing.
– They knew, but they were afraid of political backlash. It’s possible the government’s lawyers simply didn’t want to be seen “attacking Christians,” which, I feel certain, is how a debate about sincerity would have been spun. They may simply not have wanted the sideshow.
– They thought the court wouldn’t be willing to hear it. The doctrine in this area is perhaps uncertain, and the government may not have wanted to get derailed on an uncertain legal point, because . . . .
– They thought they could win the stronger version of the case. Probably the government lawyers wanted to put this question to bed for good. Winning by undermining the sincerity of the Greens would only prolong the inevitable—there were at least 40 similar cases pending when Hobby Lobby was being heard. And relatedly . . . .
– They knew the case would likely be combined with other cases. It’s important to remember that, though Hobby Lobby is the first named party, the case was actually consolidated with another case, that of Conestoga Wood, a Mennonite company. I’m not aware of anyone challenging the sincerity of that company’s ownership.
For some or all of those reasons, the government chose not make an issue of Hobby Lobby’s inconsistent behavior.
Anyway—let’s assume sincerity, as the Court did. What types of sincere belief are we prepared to give legal effect in the name of “free exercise”? It’s a question the Court doesn’t bother to answer carefully, instead stating broadly that “the federal courts have no business addressing whether the religious belief asserted in a RFRA case is reasonable.” (Parentheses omitted.)
Is that right? I wonder.
Consider the following. RFRA requires a two-step analysis: first, the court asks whether there is a religious exercise being burdened by a government action; if there is, then the court is required to apply the “strict scrutiny” test, asking whether there is a compelling government interest and whether the legislation or policy in question is the “least restrictive” means of achieving that interest.
In practice, strict scrutiny is a very hard standard to meet. Most laws examined under strict scrutiny will fail. This is why it is important, for the sake of uniformity in the law, to cut off the inquiry at the first step where there is, genuinely, no burden. If you make “burden” too easy to prove, you turn RFRA into a gigantic loophole for laws of general applicability. Although there are, perhaps, good reasons to make some allowances for religious beliefs in the application of law, the burden imposed on such beliefs must be real and not rest on a fiction.
When it comes to questions not clearly susceptible to scientific proof—Does god X exist? Is sex outside of marriage immoral?—courts probably have to give churches broad leeway to define the burden to their beliefs. But where a supposedly “religious” belief is subject to objective testing, I’m not sure courts should be so sanguine. There is simply no reason to defer to a belief, however sincerely held, that the state of Wisconsin is larger than the state of Alaska, or that human teeth are made of cheese, or that the sun rises from the south. I would submit that when the claim of burden rests on false claims of observable physical fact, the court should be able to find that the claim is not valid.
Imagine that Congress passes a law requiring all manufacturers engaged in or affecting interstate commerce to put solar panels on their roofs by 2020, and that the law is challenged by a group known as the Aqualites. The Aqualites worship a water deity, and, accordingly, are forbidden to boil water, because it is disrespectful to their god. The Aqualites also believe, mistakenly but honestly and with great conviction, that solar panels produce electricity not by the photovoltaic effect, but by harnessing the heat of the sun to boil water in tiny steam turbines within the solar cells. Now, the question is—does the law requiring the installation of solar panels work some sort of burden on their free exercise of religion, by forcing them to do what they sincerely believe is boiling water, even though it in fact is not?
I ask because Hobby Lobby claims that the burden on its owners’ free exercise of religion is the burden of being forced to provide contraceptive devices and medications that can prevent a fertilized egg from implanting in the uterus. Because they believe that “life begins” when the egg is fertilized, to them the use of any such contraception is tantamount to abortion, which they (theoretically; see above re: China) consider a grave sin. Thus, the burden on their religious exercise is being forced to provide abortions and end “human life,” as they define it.
But for at least some of these forms of contraception, there’s quite good scientific evidence that it simply doesn’t function to prevent implantation of a fertilized egg:
[A] 2007 study showed that Plan B did not prevent eggs from attaching to cells in the uterus. The eggs were collected from a fertility clinic that would have discarded the specimens otherwise. Other studies in 2007, 2009 and 2010 in Australia and Chile showed that the morning-after pill was only effective in women who had not ovulated. The rate of women of pregnancy for women who had ovulated already and used Plan B was the same rate as people who hadn’t used the pill at all.
[I]n lab tests using cultured cells, the drug does not keep a fertilized egg from attaching to a layer of uterine cells.
And there’s no evidence going the other way—i.e., showing that emergency contraception does keep fertilized eggs from attaching.
So, for at least two out of the four types of contraception Hobby Lobby objected to, the scientific evidence is strong that the Greens are simply mistaken in their beliefs. Not “mistaken” in the sense that an atheist might think people are mistaken that there’s a benevolent force guiding the universe, or in the sense that a Calvinist might think that Catholics are mistaken about salvation by works. Rather, the Greens are demonstrably wrong about a matter of ordinary physical fact. Even if you grant every one of their theological premises, they are not burdened in their religious practice by being required to provide Plan B to their employees. But they think they are. The question is, to what degree should a court cater to such incorrect beliefs?
The Court, aided by the government’s lawyers, hedges:
[T]he Hahns and Greens . . . object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13-354, at 9, n. 4, may result in the destruction of an embryo.
I suspect that “may” is doing a LOT of work here. It’s true, of course, that science is full of reversals. It may be that the studies above will turn out to be disproved by further research. But how much are we willing to hang on may? After all, it may be that 200 years of biological and geological science is wrong, but courts have little trouble distinguishing such anything-could-be true speculation from science in throwing “intelligent design” curricula out of the public schools. The theory of natural selection, of course, has a much broader evidentiary base than the proposition that emergency contraception drugs do not prevent the attachment of fertilized eggs. Still, somewhere on the continuum of scientific certainty we must be willing to cut off the power of “may,” and be comfortable with “is,” absent some paradigm-upsetting new evidence.
(It doesn’t help, of course, that the court tends to talk about all four disputed forms of contraception as functionally equivalent. It’s possible that when HHS lawyers “acknowledged” the Greens’ point, they were thinking of IUD’s, which, in fact, might well prevent the attachment of a fertilized egg.* If so, that’s on the government for not being clearer about the science.)
There are known, judicially-manageable standards for dealing with scientific claims, from judicial notice (for facts considered truly beyond dispute) to the “Daubert” inquiry (for vetting scientific testimony). Those tools can be brought to bear on supposedly “religious” claims that are, in fact, scientific claims.
It might be objected that there will be cases where it’s hard to tell whether a claim is about the observable world or not. I am not convinced. Science is self-bounding: it limits its inquiry to propositions that are falsifiable through physical testing. Belief in an afterlife is not such a proposition. The existence of God is not such a proposition. The morality or immorality of a given action is not such a proposition. The implantation or non-implantation of a fertilized egg, however, indubitably is such a proposition.
It might also, more credibly, be objected that in many cases the science may be unsettled or unclear. But that problem can be overcome by a sufficiently high burden of proof. If we are not comfortable with proving or disproving scientific claims made in the name of religion by the preponderance of the evidence, we could always require the more stringent “clear and convincing evidence” standard. The evidence that emergency contraception does not interfere with implantation would probably meet that standard. (Evidence refuting the beliefs of the Aqualites about solar panels, of course, certainly would.)
In short, because RFRA poses a very high hurdle to the enforcement of otherwise valid legislation once the court has made a determination that the plaintiff’s religious exercise is burdened, the burden determination should not be made in a fact-free zone. Where the objection to the legislation is purely moral or theological in nature, the courts likely should not wade into the details. But where the objection turns on issues of observable fact, I think courts have an obligation to make sure the plaintiff’s claims square with reality, so that false and easily corrected statements of fact do not form the substance of an enforceable exemption from laws of general applicability.
*Though even with regard to IUD’s there’s good science suggesting they do no such thing.