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Tuesday, July 1, 2014

Hobby Lobby and Agency Fee Cases

Amy Howe writes at SCOTUSblog:
The Supreme Court released its final two opinions yesterday and adjourned for the summer, leaving the rest of us to parse the cases and wait for September. Thomas Hopson rounded up early coverage of both decisions yesterday for this blog.
In Burwell v. Hobby Lobby, the Court held – in an opinion by Justice Samuel Alito – that (at least as applied to closely held corporations) the regulations promulgated by the Department of Health and Human Services requiring employers to provide their female employees with no-cost access to contraception violate the Religious Freedom Restoration Act. Commentary comes from Hadar Aviram at PrawfsBlawg and Ruthann Robson at the Constitutional Law Prof Blog. Other commentary focuses on Justice Ruth Bader Ginsburg’s dissent in the case: at Re’s Judicata, Richard Re discusses “inconsistency about inconsistency” in the context of the Ginsburg dissent, while at Think Progress Judd Legum reports that the dissent has “already been turned into a song. And it’s not terrible.”
In Harris v. Quinn, a divided Court – also in an opinion by Alito – held that the First Amendment prohibits the collection of an agency fee from home health-care workers who do not wish to support or join a union. Coverage of the decision comes from Tony Mauro of The National Law Journal, with commentary coming from Matt Bodie at PrawfsBlawg (here andhere) and Steven Schwinn at Constitutional Law Prof Blog. At Working Life, Jonathan Tasini anticipated the decision, looking for a possible “silver lining.”
From Justice Alito's majority opinion in the former:
In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:
“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They donot pray, worship, observe sacraments or take otherreligiously-motivated actions separate and apart fromthe intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added).
All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.
From President Clinton's statement on signing the Religious Freedom Restoration Act:
The free exercise of religion has been called the first freedom, that which originally sparked the development of the full range of the Bill of Rights. Our Founders cared a lot about religion. And one of the reasons they worked so hard to get the first amendment into the Bill of Rights at the head of the class is that they well understood what could happen to this country, how both religion and Government could be perverted if there were not some space created and some protection provided. They knew that religion helps to give our people the character without which a democracy cannot survive. They knew that there needed to be a space of freedom between Government and people of faith that otherwise Government might usurp.
They have seen now, all of us, that religion and religious institutions have brought forth faith and discipline, community and responsibility over two centuries for ourselves and enabled us to live together in ways that I believe would not have been possible. We are, after all, the oldest democracy now in history and probably the most truly multiethnic society on the face of the Earth. And I am convinced that neither one of those things would be true today had it not been for the importance of the first amendment and the fact that we have kept faith with it for 200 years.
What this law basically says is that the Government should be held to a very high level of proof before it interferes with someone's free exercise of religion. This judgment is shared by the people of the United States as well as by the Congress. We believe strongly that we can never, we can never be too vigilant in this work.