Burwell v. Hobby Lobby

What Hobby Lobby Shows Us About the Supreme Court and Civil Rights Laws: Winners and Losers in the Roberts Court

Share this article:

This post was originally published at the Huffington Post.

In its recent decision in Hobby Lobby, the conservative 5-4 majority -- Chief Justice Roberts and Justices Alito, Scalia, Thomas, and Kennedy -- did something that may appear very unusual. In divided cases, these five justices have the reputation for interpreting very narrowly laws passed by Congress to protect civil rights. So why did they interpret so broadly the Religious Freedom Restoration Act (RFRA), a law passed by Congress to protect the important civil right of religious freedom? The answer, unfortunately, is all too clear. Comparing Hobby Lobby with the two rulings in civil rights law cases issued by the Court over the last year, the key factor that explains how the conservative majority ruled is not precedent, the language of the statute, or congressional intent, but who wins and who loses.

Let's start with last year's rulings, both of which concerned Title VII of the 1964 Civil Rights Act which bans employment discrimination. In University of Texas Southwestern Medical Center v. Nassar, the majority ruled very narrowly in interpreting Title VII, deciding that the only way that employees can prevail on a claim that they have been fired in retaliation for raising job bias claims is to prove that they would not have been discharged "but for" the retaliatory motive. This was despite the fact that in order to strengthen Title VII, Congress added language to the law in 1991 to make clear that plaintiffs should prevail if they show that discrimination was a "motivating factor" in a job decision. As Justice Ginsburg explained in dissecting Justice Alito's attempt for the majority to draw a distinction between retaliation and other claims under Title VII, the net effect of the majority's ruling was to make it harder to prove a Title VII retaliation claim than before the 1991 law and with respect to other civil rights statutes that don't explicitly mention retaliation. The 5-4 majority had "seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII," she concluded, "and turned it into a measure reducing the force of the ban on retaliation."

In Nassar, in ruling against a doctor of Middle Eastern descent in a case also involving egregious ethnic and national origin discrimination, Alito disregarded clear legislative history and language showing Congress' broad intent, as well as the interpretation of the law by the Equal Employment Opportunity Commission (EEOC). Interestingly, towards the end of his opinion, Alito appeared to reveal a key consideration behind the majority's decision. The ruling was important, he explained, to "the fair and responsible allocation of resources in the judicial and litigation systems." After all, he pointed out, retaliation claims "are being made with ever-increasing frequency," although he did not even consider how many have been proven meritorious. Agreeing with the EEOC and the plaintiff on the "motivating factor" standard, he wrote instead, "could also contribute to the filing of frivolous claims." As Justice Ginsburg put it, the majority "appears driven by zeal to reduce the number of retaliation claims against employers."

The other 2013 Title VII ruling also reflected an extremely narrow reading of the law. Vance v. Ball State University concerned a complaint by an African-American woman that she had been subjected to racial harassment and a racially hostile work environment. Under prior Title VII Court rulings agreed to by both conservative and moderate justices, the employer itself is often liable for such harassment claims when the harassment is committed by an employee's supervisor. But in Vance, in an opinion by Justice Alito, the familiar 5-4 Court majority significantly narrowed Title VII. It ruled that such vicarious employer liability applies only when the harassment is committed by a manager who can fire or reduce the pay or grade of the victim, not when it is committed by a manager who does not have that power but does control the day-to-day schedules, assignments, and working environment of the victim.

As Justice Ginsburg explained in dissent, the majority's holding again contradicted guidance issued by the EEOC as well as Congress' broad purpose to eliminate workplace discrimination. In fact, she pointed out, not even the university defendant in Vance itself "has advanced the restrictive definition the Court adopts." But again, Alito's opinion betrayed part of the majority's true motives. Its narrow interpretation would be "workable" and "readily applied," Alito explained. And it would promote "the limitation of employer liability in certain circumstances."

Something very different happened in the next Supreme Court case interpreting a Congressional civil rights statute: 2014's Burwell v. Hobby Lobby.

In that case, the same 5-4 majority that narrowly interpreted Title VII in Vance and Nassar adopted a very broad interpretation of the Religious Freedom Restoration Act (RFRA). All nine justices agreed that RFRA was enacted by Congress in response to the Supreme Court decision in Employment Division v. Smith, which restricted the protection of religious liberty by the Court under the First Amendment. But the 5-4 majority in Hobby Lobby ruled that RFRA provides "very broad protection for religious liberty" - "even broader protection than was available" under the First Amendment in pre-Smith decisions. As Justice Ginsburg put it in dissent, the majority interpreted RFRA "as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence." She explained further that this broad interpretation contradicted the language of the statute, its legislative history, and a statement by the Court in a unanimous ruling in 2006 that in RFRA, Congress "adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith."

This difference in statutory interpretation was critical to the majority's ruling in Hobby Lobby -- that for-profit corporations whose owners had religious objections to contraceptives could invoke RFRA to refuse to obey the Affordable Care Act's mandate that they provide their employees with health plans under which contraceptives are available to female employees. As Justice Ginsburg explained, no previous Court decision under RFRA or the First Amendment had ever "recognized a for-profit corporation's qualification for a religious exemption" and such a ruling "surely is not grounded in the pre-Smith precedent Congress sought to preserve." The 5-4 majority's broad interpretation that RFRA applies to for-profit corporations like Hobby Lobby was obviously crucial to its holding.

In addition, however, the 5-4 majority went beyond pre-Smith case law in another crucial respect. Before a person can claim an exemption from a generally applicable law under RFRA, he or she must prove that the law "substantially burden[s] a person's exercise of religion." According to the majority, the corporations in Hobby Lobby met that standard by demonstrating that the use of certain contraceptives that could be purchased by their employees under their health plans would seriously offend the deeply held religious beliefs of their owners. As Justice Ginsburg explained, however, that ruling conflicted with pre-Smith case law on what must be shown to prove a "substantial burden." In several pre-Smith cases, the Court had ruled that there was no "substantial burden" created by, for example, the government's use of a social security number to administer benefit programs or its requirement that social security taxes be paid, despite the genuine and sincere offense that these actions caused to some religious beliefs. As Justice Ginsburg stated, such religious "beliefs, however deeply held, do not suffice to sustain a RFRA claim," except under the extremely broad interpretation of RFRA by the 5-4 Court majority.

As in the Title VII cases, Justice Alito's opinion for the 5-4 majority in Hobby Lobby was revealing about some of the majority's underlying concerns. In explaining the majority's decision to interpret RFRA as applying to for-profit corporations, Justice Alito noted that "[w]hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people" - in this case "the humans who own and control those companies" in the Hobby Lobby case. As Justice Ginsburg observed, the 5-4 majority paid little attention to the Court's pronouncement in a pre-Smith case that permitting a religious exemption to a general law for a corporation would "operate[e] to impose the employer's religious faith on the employees" of the corporation.

Even though the Supreme Court's 2013-14 rulings that interpreted civil rights laws passed by Congress may seem different, a common theme animates them all. Whether the 5-4 majority interpreted the statutes broadly or narrowly, the losers in all of them were women, minorities, and working people, and the winners were employers and corporations. In the majority's own words, the result is the "limitation of employer liability" under laws like Title VII designed to protect workers and the "protecting" of the "humans who own and control" corporations under RFRA.

Since all these rulings interpret Congressional statutes, not the Constitution, Congress clearly has the authority to reverse them. In fact, Congress has done exactly that with respect to other 5-4 rulings by the Court that misinterpreted civil rights statutes to harm women and minority workers and benefit their corporate employers. As recently as 2009, the Lily Ledbetter Fair Pay Act reversed a flawed 5-4 ruling that severely restricted workers' ability to file equal pay claims under Title VII. Congress is already considering legislation to reverse many of the effects of Hobby Lobby, a corrective effort that Senate Republicans have blocked by a filibuster to prevent the full Senate from even considering it. In our currently divided Congress, immediate prospects for the passage of such remedial legislation may not appear promising. But it is important to recognize the current 5-4 majority's pattern of favoring corporations and harming workers in its decisions interpreting federal civil rights laws, and to recognize and act on the ability to reverse these harmful rulings.

PFAW Foundation

Barney Frank: This Year’s Midterm Elections Define Our Courts

In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.

Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).

He continues,

…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.

The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).

Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,

This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.

PFAW

The Supreme Court’s Attack on Working Women

The following is a guest blog by Beth Huang, 2010 Fellow of People For the American Way Foundation’s Young People For program.

Last Monday, the Supreme Court ruled in two critical cases with major implications for working women. The Supreme Court ruled once again that corporations are people, this time conferring religious rights that trump workers’ rights to access full healthcare. In a dissent to the Burwell v. Hobby Lobby ruling, Justice Ruth Bader Ginsberg noted “that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage.” Justice Ginsberg’s dissent reveals the real impacts of denying coverage of contraception for low-wage working women -- something the slim five-justice, all-male majority fails to comprehend.

To compound the attack on working women, five male Justices severely undermined the ability of care workers – 95 percent of whom are women – to collectively bargain in the case Harris v. Quinn. This assault on working people stems from the Justices’ view that the care workers in the case are not “real” public employees and thus the union cannot charge the appropriate agency fee to all of them for its bargaining services. This ruling serves the interests of anti-worker extremists at the expense of these invaluable workers who care for our families and our children.

It’s clear: a majority of Justices are trampling over the rights of working women. In light of these attacks, it’s time to organize for gender equity and economic justice for working women.

Back in 2010 when I was a student, Young People For helped me develop organizing skills that have led me to effectively advocate for and with women and workers. Through my work in student labor organizing as an undergraduate and since graduation, I have seen that workers’ rights are women’s rights, from having access to comprehensive healthcare to having a voice on the job. To build an economy that works for today’s students and youth, we need to organize locally and train new leaders in the broad effort to advance our agenda for gender equity and economic justice.

At the Student Labor Action Project a joint project of Jobs with Justice and the United States Student Association, we’re doing just that by building student power to advance an agenda that protects the rights of current workers and promotes a more just economy for students to enter when they graduate. Our campaigns focus on demanding funding for public higher education, which we know is a major source of good jobs and upward mobility for women and people of color; pushing back on Wall Street profits that fuel the student debt crisis; and raising the working conditions for Walmart workers, 57 percent of whom are women.

The Supreme Court’s decisions last week underscored the urgency of organizing for these changes. Women’s access to equal rights, power in the workplace, and comprehensive healthcare depends on it.

PFAW Foundation

Hobby Lobby, Wheaton College, and the Importance of Women Justices

Days after the Supreme Court handed down its damaging 5-4 decision in Burwell v. Hobby Lobby, SCOTUS issued an order that underscored the danger that Hobby Lobby poses for women’s health.

In Wheaton College v. Burwell, SCOTUS temporarily granted relief to Wheaton College, a religious institution that is “categorically” opposed to providing contraceptive services, from the contraception coverage compromise solution that the  Court explicitly endorsed in Hobby Lobby. The order says that Wheaton may be exempt from submitting a form that would inform the government that they object to covering birth control. Wheaton College argued that submitting this form would make it “complicit in the provision of contraceptive coverage.” The temporary order indicates that the Court’s majority may accept this problematic argument.

In what Think Progress called a “blistering dissent” to the order, Justice Sonia Sotomayor — joined by the two other female Justices Elena Kagan and Ruth Bader Ginsburg — sharply criticized the order. Sotomayor wrote in the dissent:

“Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

While this order is temporary until the case may be heard in front of the Court, the female Justices’ strong dissent demonstrates not only the division within the Court, but also the importance of having diversity on our courts. Women on the bench provide a critically important perspective on all cases, but especially those that deal with women’s lives. It is more important than ever, when women’s rights are under assault, that women are more fairly represented at all levels of government.

PFAW Foundation

Unpacking Hobby Lobby & Other SCOTUS Decisions: PFAW Member Telebriefing

Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.

Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.

Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.

Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.

The telebriefing also covered the recent decisions in McCullen v. Coakley, NLRB v. Noel Canning, and Harris v. Quinn, underscoring the Court’s decisive move to the right.

Listen to the full audio of the telebriefing for more information.

 

PFAW