Hobby Lobby and Sincerity of Beliefs

July 4th, 2014

After reading Hobby Lobby, I wonder whether sincerity will prove to be a sufficient limiting principle. Justice Alito makes clear that if the beliefs are sincerely held, they cannot be challenged.

Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the in- surance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to determine” whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does.

While the government conceded Hobby Lobby’s sincerity in this case with respect to contraception, I think it would be somewhat difficult for the government to make a similar concession in a case concerning racial discrimination.  Can sincerity be a limit?

To qualify for RFRA’s protection, an asserted belief must be “sin- cere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., e.g., United States v. Quaintance, 608 F. 3d 717, 718–719 (CA10 2010).

If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Con- gress limited RFRA’s reach out of concern for the seem- ingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits?

Justice Ginsburg cites a string of medical products that religious corporations may object to, due to religious beliefs:

Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.  ….

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?31 According to counsel for Hobby Lobby, “each one of these cases . . . would have to be evaluated on its own … apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision. 31Religious objections to immunization programs are not hypothet- ical. See Phillips v. New York, ___ F. Supp. 2d ___, 2014 WL 2547584 (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccina- tions Threaten Religious Freedom (2007), available at http://www.lc.org/ media/9980/attachments/memo_vaccination.pdf. …. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Wom- en’s Health Amendment.

The majority rejects the dissents charges that, suddenly, employers will start to deny coverage of other products that conflict with religious beliefs.

HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to sub- stantiate this prediction.42 HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employ- ers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.

Prior to the ACA, many employers would exclude certain contraceptives from their health insurance policies. There is no evidence that anyone attempted to exclude vaccines or blood transfusions. Perhaps these newly minted objections can be deemed insincere. During Vietnam, a rash of people suddenly decided that they were Amish, and in an effort to evade the draft. The courts were well suited to determine these new-found beliefs were not particularly sincere.

Likewise, there is no evidence that there are any efforts to exclude vaccines from coverage.

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance- coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage require- ments, such as immunizations, may be supported by dif- ferent interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Justice Kennedy explains that these other issues will be more difficult to accomodate.

RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.

Stay tuned.