As Hobby Lobby Heads to SCOTUS, Let’s Ditch Kosher Butcher Analogies

Have you heard the kosher butcher analogy? It’s one commonly made to paint a parade of horribles should Hobby Lobby, the multi-billion dollar arts and crafts chain, lose its challenge to the Affordable Care Act’s contraception coverage requirement, being heard next Tuesday at the Supreme Court.

The analogy goes something like this: what’s next if Hobby Lobby loses? The government mandating that kosher butchers sell pork? (Never in the history of Jewish civilization have non-Jews been so concerned about the fortunes of kosher butchers.)

Here’s Michael Helfand in the L.A. Times:

Indeed, it is far from surprising that the U.S. 10th Circuit of Appeals decision now on appeal before the Supreme Court, which granted an injunction against implementing the contraception mandate, highlighted the hypothetical case of a kosher butcher. As the court queried: “Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” The idea that kosher practices wouldn’t apply in the for-profit sector is as bewildering as it is incoherent.

Well, not really. The argument about the kosher butcher (or deli) dates back to the early days of the fight over the contraception coverage requirement, before Hobby Lobby had filed its lawsuit. In his testimony before Congress on the proposed regulation, Archbishop William Lori, who led the U.S. Conference of Catholic Bishops’ religious freedom initiatives, made the analogy of the kosher deli being forced to sell products (he called it “The Parable of the Kosher Deli”).

Jonathan Sarna rebutted the parable, noting that it misapprehends the issue at stake:

The analogy to “forcing kosher delis to sell ham,” put forward by Bishop William Lori, exemplifies the way the problem is misunderstood. In America (unlike in Israel), people have the right to choose whether they want to sell ham and whether they want to consume it; neither option is proscribed. We all might agree that kosher delis should not be coerced into selling ham, but hopefully we would also all agree that a deli’s employees and customers should not be penalized for choosing to consume it.

Similarly, a kosher deli routinely gives its employees a day off on Yom Kippur, a fast day. But the deli would not be within its rights if it provided that benefit to only those employees who fast on Yom Kippur; that would be coercive. Denying insurance claims for contraceptive services represents the same kind of coercion.

Under the Religious Freedom Restoration Act, the plaintiffs must show the requirement imposes a substantial burden on their religious practice; if they make that showing, the government must then prove the law furthers a compelling government interest and is the least restrictive means of furthering that interest. Hobby Lobby may think the religious imperatives of its arts and crafts business are indistinguishable from the religious imperatives of a kosher butcher. But as Louise Melling, deputy legal director of the American Civil Liberties Union told me, this is an “inapt analogy” because the kosher butcher’s “business is about religion in a very, very different way.” Hobby Lobby’s business, she said, “is not in any way about religion,” as it offers “a service that goes out to everybody.”

As Sarna noted, the analogy is inapt also because the kosher butcher parable, in contrast to the actual Hobby Lobby case, doesn’t involve the employer imposing its religious views on its employees. Ira Lupu and Robert Tuttle have made this argument more broadly about Hobby Lobby’s RFRA case, pointing out that “protecting the religious freedom of employers under RFRA presents a risk of imposing significant costs on employees.” 

In any case, as Marty Lederman has explained, the Court has never recognized a religious freedom infringement claim by a for-profit entity:

In their scores of briefs, the plaintiffs and their many amici fail to cite a single case, apart from the current contraception coverage litigation, in which a court has held that either the Free Exercise Clause or RFRA entitled a for-profit commercial enterprise to an exemption from a generally applicable law by virtue of a burden on the religious exercise of the employer or its owners, managers, or directors.  And whenever such a case has reached the Supreme Court – including Braunfeld v. Brown (1961), Newman v. Piggie Park Enterprises, Inc. (1968), and United States v. Lee (1982) – the Court has overwhelmingly or unanimously rejected it.   (Moreover, even apart from RFRA and the Free Exercise Clause, Congress has rarely, if ever, extended specifically religious exemptions to for-profit enterprises.)

This unbroken history is hardly surprising, given that in virtually every such case – and even in cases where nonprofit commercial enterprises seek religious exemptions, such as Tony & Susan Alamo Foundation v. Secretary of Labor (1985), another unanimous decision – a religious exemption would require customers, employees, or competitors to bear a heavy cost in the service of another’s religion, something the Court has understandably been loath to sanction.

That said, though, it’s hard to imagine (a) the government requiring kosher butchers to sell pork, except in the conservative imagination where the government persecutes religious believers and (b) in any case, why that wouldn’t obviously be a substantial burden. And even if it weren’t, what would the government’s compelling interest be? Lori’s parable envisioned the government saying eating pork is “good for you,” just like universal access to contraception is good for women. The National Pork Producers Council might be thrilled with such a pronouncement. But that analogy lays bare just how the contraception mandate’s opponents believe that access to contraception is at once frivolous and insidious.