A description of the Ordinary Court project may be read here. Part I of the opinion may be read here. Part II of the opinion may be read here. Part III of the opinion may be read here. Kowal, J.’s partial dissent and partial concurrence may be read here.
Thompson, J. delivered the opinion of the Ordinary Court as to this Part IV.
Because I find that the Greens have a right to challenge the mandate’s application to their businesses, I must also reach the question of whether the mandate constitutes a “substantial burden” on their free exercise rights, and whether the Government has asserted a compelling interest under RFRA for infringing the Greens’ free exercise rights. The burden seems unquestionably substantial, as the Government seeks to compel the Greens to choose between their religion and their business and, most importantly, seeks to compel them to directly engage in activity that violates their conscience.
As to whether the Government possesses a compelling interest, the Government has made the Court’s job quite easy. Under RFRA, the Government must demonstrate that the “application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling interest.” 42 U.S.C. § 2000bb-1 (emphasis added). By its terms, then, RFRA requires that the Government show not merely that it possesses a compelling interest for the policy, but that it possesses a compelling interest for applying the policy against the specific Plaintiff seeking relief.
Here, although the Government has asserted generally why it believes there is a compelling interest for the mandate itself, it does not appear to have even attempted to explain why it has a compelling interest in applying the mandate to the Greens specifically. While there may be circumstances in which such a generalized approach would be acceptable even under RFRA, it is an approach that is worthy of consideration only insofar as the Government seeks to apply the regulation at issue uniformly. Here, the Government has not chosen to apply its regulation uniformly, but has instead exempted a large number of employers from the mandate. In such a circumstance, it must present evidence why it possesses a compelling interest for declining to make those exemptions available to the Greens.
Although it is certainly conceivable that the Government could produce evidence to demonstrate that it has a compelling interest in this particular application of the mandate at trial, this case is before the Court on a preliminary injunction, and the Greens need only show a likelihood that they will prevail at trial. As the Government has, at this stage, made no attempt to show why it has a compelling interest in applying the mandate to the Greens specifically, this is a standard that the Greens are able to meet almost by default.
Thompson, J., was joined in this part IV of the opinion of the Ordinary Court by Kowal, J. and Dave, J. Kowal, J. is further of the opinion that his dissent from part II applies with equal force as to this part IV.
Likko, C.J., dissenting:
As described in my dissent from Part III of the Court’s opinion, none of the Respondents have articulated claims which confer an intrusion upon their right of free religious exercise under RFRA. Hobby Lobby has no religious beliefs with which to interfere, and the Greens have not been asked, as individuals, to do or refrain from doing anything at all.
What the Contraception Mandate requires is that Hobby Lobby comply with a law to which the Respondents have articulated a mere “generalized grievance.” This is insufficient to bestow standing on any Respondent. Hollingsworth v. Perry, __ U.S. ___, 133 S.Ct. 2652 2662 (June 26, 2013). To the extent that the Contraception Mandate does in fact compel a corporation to provide an abortifacient, Respondents and others who object to abortions should have been advised that they must resort to the political process to seek modification or repeal of the law as it stands today.
Having found to the contrary, the majority must proceed to address the second tier of questions under RFRA, those questions which occur after the burden of demonstration has shifted to the Government. The Government will need to demonstrate to the majority that the Contraception Mandate achieves a compelling governmental interest, and that it is narrowly-tailored so as to achieve that interest in the fashion most permissive of religious freedom possible.
I disagree with my Brethren’s reasoning on these questions only because they reached the questions in the first place. I suspect that had I found cause to address the merits of this issue, I would have joined this portion of their opinion. As I would find that the Greens necessarily fail to articulate an actionable claim, however, this portion of my opinion is not essential to my reasoning herein.
I would hold that no Respondent has stated a claim upon which relief can be granted. A corporation cannot hold a religious belief, and therefore cannot meet the first prong of the RFRA test. Insofar as this is the ruling of the majority, the majority is on solid ground.
But the individuals are not asked to do anything directly by the law, and therefore they cannot meet the second prong of the RFRA test. In finding that the individuals state a claim that a corporation they own and operate must act contrary to their individual religious principles, the majority plays with fire: they allow those engaged in commerce to invoke the corporate form when it is convenient to do so, and to set it aside when it is convenient to do so and then inject those non-human entities with all manner of exclusively human attributes. Today, that attribute is religion. Tomorrow, it might be love. The day after, it might be racial prejudice.
The potential for abuse is obvious, and we can only hope that modifications to the law in the future will tailor and curtail the bizarre idea that corporations are legally extensions of their owners rather than discrete entities.
Therefore, I would vacate the ruling of the Tenth Circuit, and remand the case to the United States District Court for the Western District of Oklahoma for dismissal of the entire matter with prejudice and further proceedings thereafter consistent with the law and the interests of justice.
Likko, C.J., was joined in this dissent by Togut, J.
Order of the Court:
The necessary order resulting from this opinion is that the decision of the Tenth Circuit Court of Appeals is affirmed in part and reversed in part. A majority of this Court finds that the Greens have established a likelihood of success on the merits, such that the injunction should be upheld pending trial of the matter.
The case is remanded to the United States District Court for the Western District of Oklahoma for further proceedings, including but not limited to dismissal of the claims of Hobby Lobby Stores, Inc. and Marden, imposition of a preliminary injunction against enforcement of the Contraceptive Mandate as to the Greens to the fullest extent necessary to give the fullest effect reasonable throughout all further proceedings, including as to the claims of all other parties, consistent with this opinion and the interests of justice. The Greens shall be deemed the prevailing parties as to the appeal through this stage.
It is so ordered.
I really, really want to thank Mark, Tim, Michelle, and Dave for going along with me on this project. They all did a ton of work, based on my flight of fancy. We all spent a lot of time reading the briefs, writing, and e-mailing one another trying to lobby for votes and flesh out our respective positions. Everyone worked with the kind of collegiality that we’d hope characterizes the real Supreme Court, and of course the disagreements reflected in these posts are very cordial. I hope we can do it again some time soon, friends. — Burt Likko
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.