By: Jamie Inferrera, Staff Writer
The United States Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. is perhaps one of the most talked about cases in the recent history of the high Court.
The Affordable Care Act of 2010 gave the U.S. Department of Health and Human Services (HHS) substantial leeway in the authority to promulgate regulations relating to “preventative care and screenings” for women. According to the syllabus in the Supreme Court’s opinion, “[n]onexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.”[1] Religious nonprofit organizations with objectives to the coverage for contraceptive services were granted an exemption from HHS.
The owners of Hobby Lobby and Conestoga Wood Specialties, two closely held for-profit corporations, sued the federal government in separate actions, seeking preliminary injunctions against the mandate because of the owners’ deeply held Christian beliefs. On certiorari to the Supreme Court, the cases were consolidated. On June 30, 2014, the high Court ruled that that regulations promulgated by HHS relating to no-cost access to contraception violated the Religious Freedom Restoration Act (RFRA) in relation to closely held corporations.
To discuss the Hobby Lobby decision, on September 17, 2014, the Federalist Society at Duquesne University’s School of Law hosted Professor Richard Duncan of the Nebraska College of Law.
“Hobby Lobby is not a constitutional question,” said Professor Duncan. “Under the Constitution, Hobby Lobby would have been a much harder case.”
Professor Duncan also noted that “Hobby Lobby is a boring case involving statutory construction.” Prior to the Hobby Lobby lawsuit, RFRA was just another federal statute. The Religious Freedom Restoration Act was introduced by then-Congressman (now Senator) Chuck Shumer (D-NY) and was passed unanimously through the House of Representatives. It passed through the Senate with only three dissenting votes and was signed into law by former President Bill Clinton in 1993.
While the RFRA statute specifically cites that the “[g]overnment shall not substantially burden a person’s exercise of religion,[2]” Professor Duncan explained that the use of the term “person” is also construed to encompass closely held corporations, such as Hobby Lobby and Conestoga Wood Specialties. The Dictionary Act, 1 U.S.C. § 1, states that “[i]n determining the meaning of any Act of Congress…the words ‘person’ and ‘whoever’ includes corporations…as well as individuals.”
Professor Duncan also explained to the room full of students, professors, and local attorneys that, in his perspective, the Hobby Lobby decision should be been unanimous amongst the high Court’s justices. That is hard to imagine with Justice Ruth Bader Ginsburg’s 35 page dissent, which has been described as “passionate,” “fiery,” and “scathing.” In an exclusive interview with Katie Couric, Justice Ginsburg noted that while she has respect for Hobby Lobby’s owners, “they have no constitutional right to foist that belief on the hundreds and hundreds of women” who work for the business[3].
As Justice Ginsburg also stated in the interview, one of the pinnacles of the American judicial system is that the justices of the high Court are able to write dissents. And throughout history some of those dissents have eventually become the majority view. Specifically, Justice Ginsburg noted Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson[4].
While it is unlikely that the Supreme Court will revisit the issues surrounding the Hobby Lobby case in the foreseeable future, Congress may revisit the now well-known Religious Freedom Restoration Act. The high Court’s majority opinion, as well as Justice Ginsburg’s dissent, is available here.
[1] Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).
[2] 42 U.S.C. § 2000bb—1
[3] Couric, Katie. “Exclusive: Ruth Bader Ginsburg on Hobby Lobby Dissent.” Yahoo News. 31 July 2014 <http://news.yahoo.com/katie-couric-interviews-ruth-bader-ginsburg-185027624.html>.
[4] Id.
