The Roberts Court’s “Special Solicitude” for Corporations

The Religious Freedom Restoration Act (RFRA), five men on the Supreme Court told us this morning in Burwell v. Hobby Lobby Stores, Inc., is broad enough to protect the religious exercise rights of a closely-held corporation. “It is quite a stretch,” wrote Justice Samuel Alito, joined by the Chief Justice and Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy, to think that the 1993 statute “enacted to provide very broad protection for religious liberty” would leave “for-profit corporations unprotected.”

Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor, Elana Kagan, and Stephen Breyer, took issue with this presumption, given that Congress passed RFRA “to serve a far less radical purpose.”

RFRA was passed in response to the 1990 Supreme Court’s decision in Employment Division v. Smith, in an opinion authored by Justice Scalia, holding that barring Native Americans from receiving unemployment benefits after they were fired due to their ritual peyote use did not violate their free exercise rights. RFRA, Ginsburg argued, reinstated the law to pre-Smith jurisprudence without  creating any “new rights for any religious practice or for any potential litigant.”

“Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence,” she wrote. RFRA didn’t expand the scope of religious freedom rights, and in the case law there is “no support for the notion that free exercise rights pertain to for-profit corporations.”

There’s a reason for that, Ginsburg maintained. While the Constitution and the courts have long recognized a “special solicitude” for religious organizations, there is no such solicitude for commercial entities. The reason for that is “hardly obscure,” Ginsburg went on. “[R]eligious organizations exist to foster the interests of persons subscribing to the same religious faith. No so of for-profit corporations.”

The majority has a huge blind spot, owing in large part to their lifelong lack of a need for contraception, and their apparent lack of awareness of what is involved in obtaining it. (Recall at oral argument that Scalia deemed the methods at issue in the case — emergency contraceptives Plan B and ella, and intrauterine devices, which can cost up to $1,000 — “not terribly expensive.”)

For women, in the majority’s view, contraceptives are easy to get and not having coverage is inconsequential. For the majority the real burden is on the employer being compelled by the government to provide coverage for devices they believe, contrary to all the medical evidence, might impede implantation rather than, as they do, prevent fertilization.

Special solicitude is no longer just for churches, but for corporations as well.

In conjunction with the special solicitude for corporations, the majority seems to have a special antipathy for contraception. Its ruling, the majority insists, is narrowly limited to the case at hand: a challenge to the contraception benefit requirement. What if those corporations made a claim that a law violated their religious beliefs against immunizations? Those claims would “involve different arguments,” the Court wrote. What about other nefarious uses to which religious exemptions could be put, like religiously motivated race discrimination? Today’s decision, Justice Alito maintained, provides no “shield” for discrimination “cloaked as a religious practice.” Instead, it “is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fail it if conflicts with an employer’s religious beliefs.” (emphasis mine)

It’s hard to tell: is this a disingenuous deflection of criticism of far-reaching decision, or an honest reflection of just how yucky the majority finds contraception?

It’s hard to imagine, though, despite Alito’s protestations, that lawyers are not already busy thinking of new exemptions to carve out for corporations run by religious owners.

Despite the majority’s newly recognized rights for religious corporations, for-profit entities engaged in commercial enterprise and employing workers of different (and no) faiths are not the same as religious organizations.  “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention,” Justice Ginsburg wrote.

It’s that “special solicitude.” Once you grant it to corporations, you can assume their religious beliefs trump those of their employees.

Sarah Posner, author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters, covers politics and religion. Her work has appeared in The Washington Post, The Guardian, The Atlantic, The American ProspectThe NationSalon, and other publications. Follow her on TwitterRSS feed Email