06 July 2014

Freedom of Religion and Obamacare: The Hobby Lobby Decision Explained

Because I feel it's necessary, based on all the misinformation and puzzlement I have been hearing, here is a plain-English explanation of what went down at the United States Supreme Court last week. I hope it will explain for laypersons, in and out of the United States, what everyone is talking about, with as little politicizing and legalese as possible. (If you're a regular reader, you already know what I think.)

I am an attorney licensed to practice in New York and New Jersey, and various federal courts, including the Supreme Court. I have 20 years of experience with constitutional issues. That being said, please be advised that this post (along with any others that may follow on the subject) represents my own interpretation of the Supreme Court's decision and should not be mistaken for legal advice. If you have specific questions, please consult directly with an attorney in your state.

A Little Legal Background. (I apologize for this, but it's necessary for a clear understanding of the issues.)

The First Amendment of the United States Constitution guarantees citizens, among other things, the right to free exercise of religion. As anyone could have predicted, though, the secular laws immediately began coming into conflict with people's religious practices on a fairly regular basis. Until 1993, the federal courts generally resolved these conflicts with a two-part test. They asked whether the law in question substantially burdened someone's right to practice their religion; if it did, they then inquired whether the law was needed to serve a compelling government interest. If it was, it would prevail over the individual's right to worship freely.

In 1993, the Supreme Court decided the case of Employment Division v. Smith. In that case, two Native American social workers had ingested peyote as part of a religious ritual, and when they subsequently showed up at work, they were fired from their jobs. When they applied for unemployment insurance, their claims were denied on the ground that their conduct - ingesting the peyote - had been illegal. When their case reached the Supreme Court, the Court held, under the "balancing test" I just explained, that while the law against peyote did burden the workers' rights to use the drug in their sacramental ritual, the anti-peyote law served a compelling government interest that outweighed that right. In other words, the peyote-eaters lost.

The holding in Smith caused a fair amount of outrage in legal and religious circles. Think about it: many Christians and Jews also regularly serve alcohol to minors as part of their rituals. That's illegal, but it's generally overlooked because of the small amount of the substance involved and because the practice is so common. Shouldn't the Native Americans, people reasoned, have their peyote ceremony overlooked too? And if not, shouldn't everyone be nervous about getting fired for taking part in routine religious rituals on the weekend? Yikes.

And so, in response, President Clinton signed into law something called the Religious Freedom Restoration Act (referred to as the RFRA). The RFRA changed the balancing test: now, the government could not substantially burden any religious practice unless that burden was the least restrictive means of serving a compelling government interest. That should do it, everyone thought. Least restrictive means. Compelling government interest. That's a very, very tough test for the government to pass.

Very Quickly - Birth Control Review

Just a quick note about the whole birth control thing - a brush-up on basic human reproduction, if you will, along with an explanation of some common ideology. You'll need this too.

If you believe that life begins at conception, you belong to one of two camps on the issue. There are people who believe that a human being is created the moment a human egg meets a human sperm. This is the most conservative group. And then there are people who believe that a human being is created when the mass of cells resulting in that meeting implants in the wall of a human uterus and starts growing (usually a couple of days later). Both groups oppose voluntary termination of established pregnancies (i.e., abortion), but the latter group is a little more flexible about birth control. That's because there are two common ways that birth control can operate: by preventing the meeting of egg and sperm in the first place (like a condom or a diaphragm, or sterilization surgery), or by preventing the recently-united egg-and-sperm mass from implanting and continuing to develop (like a Plan B "morning-after" pill or an IUD). Most traditional, taken-before-the-fact birth control pills operate both ways: they prevent ovulation, but they also make the wall of the womb inhospitable to implanting embryos, just in case.

Are you with me so far? People who subscribe to the most conservative view don't like IUDs or morning-after pills, and they're suspicious of regular birth-control pills. These people are often conservative Christians, and they believe sincerely that using anti-implantation birth control is a sin, because it amounts to killing a human being. And that belief is their indisputable right.

The Affordable Care Act, or "Obamacare"

This is the last backgroundy thing you need to know before we get into the specifics of Hobby Lobby - I swear. (See? It's pretty complicated and we haven't even gotten to the case yet!)

I'll make this as simple as I can. Under the recent Affordable Care Act legislation, which is often called "Obamacare," businesses that employ a certain minimum number of employees have to provide their employees with health insurance. According to rules made by the Department of Health and Human Services, which flesh out the provisions of the Act, that health insurance must include preventive care for women, including complete coverage for any type of birth control approved by the Food and Drug Administration. This includes both types of birth control: the anti-fertilization type and the anti-implantation type. Employers pay for this coverage for their female employees. (I say "female employees" because only females have eggs, uteruses, and pregnancies - and that's why this is a women's issue.)

An extremely important detail: nonprofit religious organizations, such as churches, synagogues, and similar groups, can opt out of any coverage with which they disagree on religious grounds. All they have to do is file a one-page form with the HHS certifying their good-faith refusal, and the HHS will pay directly for the objectionable coverage. This procedure avoids stomping on the rights of a nonprofit religious organization and insures that women get the coverage of their choice without any cost to them individually.

The Hobby Lobby Dispute

Okay. I think you have enough background now to understand what happened last week.

Enter Hobby Lobby, which operates a bunch of huge craft supply stores all over the United States. Hobby Lobby is a closely-held corporation. That doesn't mean it's small - in fact, as of 2013, it had 3.3 billion dollars in annual revenue and was on the Forbes list of America's largest private companies. Saying that it's a closely-held corporation means it only has a few stockholders. In this case, the stockholders are all members of the incredibly wealthy Green family, who are conservative Christians of the as-soon-as-egg-meets-sperm-you're-pregnant camp.

And the Green family does not want to pay for its women employees to have access to any sort of birth control that operates after fertilization. But they are a for-profit corporation, so they can't take advantage of the religious exemption written into the law.

So they sued the Secretary of Health and Human Services, saying that her rules, which require that coverage, violate the RFRA.

And they won, by a squeaking 5-4 vote. (Here's a link to the official opinions in the case.)

The Justices who voted in favor of Hobby Lobby were Alito, Scalia, Kennedy, Thomas, and Roberts - all men. The Justices who dissented - that is, who voted against Hobby Lobby - were Ginsburg, Sotomayor, Kagan, and Breyer - three women and one man. Alito wrote the majority opinion. Kennedy wrote a brief "concurring" opinion - agreeing with the majority but stressing a different point. Ginsburg wrote the main dissent, and Kagan and Breyer wrote a separate dissent of their own.

And here's what they said.

The majority opinion said that, because of the closely-held nature of the Hobby Lobby corporation, the interests of the corporation and the Green family are one and the same. In other words, the corporation is entitled to a First Amendment right to the free exercise of religion. Forcing it to pay for contraceptive coverage to which it has a sincerely-held religious objection constitutes a substantial burden on its rights.

The majority further said that forcing the company to pay for such coverage was not the least restrictive way for the government to deal with the issue. The government could, for example, extend to Hobby Lobby the same mechanism for dealing with religious objections that it already extended to churches: that one-page form which, when filled out, compels the government to pay for the coverage directly. That would save Hobby Lobby from having to do something against its religion, and it would provide female employees with the coverage of their choice.

Justice Kennedy's separate opinion stressed that the decision was extremely narrow. He did not wish the Court's holding to suggest that a religious exemption was available to any employer - just to closely-held corporations whose owners had sincere religious objections.

Justice Ginsburg was unusually fiery in her dissent. She disagreed that the Greens and the corporation were one and the same. A corporation is a form of doing business that shields its owners from individual liability - if you get the benefits of being treated as a corporation, why should you double-dip by getting treated as an individual when it's convenient? A company should not have the right to bring a suit under the RFRA.

She also disagreed that Hobby Lobby was substantially burdened by the HHS rules. She reasoned that financing a sin is not the same thing as committing the sin oneself. We all pay taxes, but we don't decide individually how the money is spent. That's up to the legislature. Taken to an extreme, the two majority ideas put together - corporations having religious rights and no one being compelled to pay for things they disagree with - could set the country up for chaos in enforcing the health care law. Every individual entity would seek an exemption for every individual part of the law with which it disagreed. In the end, the law would be eviscerated, and women would be left effectively with no reliable access to the contraception they need for full, equal participation in society.

Justices Breyer and Kagan, in their separate dissent, agreed with Justice Ginsburg that Hobby Lobby's challenge to the contraceptive coverage requirement failed on its merits, so they stressed that they did not need to decide whether a for-profit corporation or its owner had standing to bring a claim under the RFRA.

So there you have it. And it would be settled, and fixable by a small amendment to the Affordable Care Act, if not for what happened on Thursday, July 3. On that day, the Supreme Court issued an injunction in the case of Wheaton College v. Burwell. In that case, Wheaton College, a small, non-profit religious liberal-arts institution in Illinois which is opposed to the use of birth control of all sorts, refuses to file the one-page form which would entitle it to an exemption. It argues that the filing of the form, in itself, makes it complicit in a sin.

And on Thursday, voting 6-3, the Supreme Court issued a preliminary injunction, basically saying that Wheaton does not have to file the form until the lower court decides the merits of its case.

All the men voted in the majority. All the women dissented.

Now you understand the issues and can discuss them intelligently. Go.

03 July 2014

Summer Interlude

There's just been so much going on in the political and legal arena. I want to write about it all, but I don't know where to start.

I wrote about the Hobby Lobby situation last April, when it first came to my attention, and I anticipated the Court's recent decision in a post on my blog's Facebook page last November. (What? You're not following me on Facebook? I spent a whole evening figuring out how to make that easy - check out the links on the right sidebar to Facebook, Twitter, Pinterest, and Ravelry, so you don't miss a thing.) I have just finished reading the Hobby Lobby decision, and I will write more about it in the coming weeks, if my readers are interested in the issue.

Yesterday, I attended a rally with the New Jersey chapter of Moms Demand Action for Gun Sense in America at the offices of Representative Rodney Frelinghuysen in Morristown. (You can see a picture of our rally on nj.com. I'm in the bright blue shirt and black pants at the far right of the picture. The far right. Ha. See what I did there?) We delivered over 3,300 postcards from citizens who support stronger federal regulation over the sale, purchase, keeping, and carrying of firearms by civilians. We believe that strong federal laws will curb the cross-border transactions that now make New Jersey's current gun laws, among the strictest in the nation, virtually useless. I'll keep caring about this issue until we can reduce the current rate of 32 dead Americans PER DAY as a result of gun violence. (My source: the Brady Campaign.) As you know if you're a loyal reader, my daughter and husband came close last November to being a part of that statistic at our local mall. We still live with the nightmares. Maybe we always will.

On a more personal note, summer has arrived with all the enthusiasm that this past winter had, and my dogs and I are trying to keep cool. I spend my days doing legal research and writing; my spare time is spent mostly knitting and reading. (All the sonograms are coming up girl this season, and I am busily making a bunch of lacy baby blankets for friends. I'll post pictures when they have been received by their owners, but I think you'll like them.) I am also tending a few pots of herbs and tomatoes, and my pumpkins, string beans, and peppers are so far withstanding the heat fairly well.

The two younger kids are in the Adirondacks as usual, one of them as a camp counselor and the other in his final year as a camper. My oldest, home from college, is working hard for the Red Cross and is also picking up early-morning shifts at a local bagel shop for some pocket money. I have been trying to choose the bike over the scooter as much as I can, because, while I'm not paid to look good, I am quite concerned about my health. And I've always loved bicycling, so why not do something I enjoy?

My oldest (left) and youngest (right) on their last evening together for the summer.
He was off to camp the next morning, and she's working hard from home.

Meanwhile, The Newburgh Sting, the documentary that features my husband and the sort of work we do in our law office, premieres on HBO on July 21. If you are interested in learning about the issues covered by the film (terrorism sting cases), or the general issues with which we deal, or if you just feel like stalking us, please check your local listings. The film is an eye-opener, and it's generated a lot of buzz at all the festivals.

Stay cool - or, if you're one of my Southern Hemisphere friends, stay warm - and I'll be back soon.

16 May 2014

When The Boss Turns Out To Be Bossy

Let me say at the outset that I am not a fan of the "ban bossy" movement. I think it's a gimmick, and while it does open up some discussion as to how we use our vocabulary in gender-biased ways, it stigmatizes a useful word for which, sometimes, there is no adequate substitute. Now, I'm afraid to say it, even though I wish I could without being instantly judged.


Much has been made of the recent dismissal of Jill Abramson from the helm of the New York Times. According to reasonably credible reports, she was dismissed for her brusque, abrasive manner (what might have been called, until recently, bossiness). Some people have said that she may also have upset some higher-ups by complaining about her compensation, but I don't have the facts on that, so I'm going to focus here on the bossy thing.

I've followed the story fairly closely, because I am interested, as you know, in issues related to women in the workplace. I find it fascinating and more than a little disturbing that the executive editor of a huge, big-city newspaper would be dismissed for brusqueness. In my mind, the cartoonish stereotype of a newspaper editor sits hunched over at a desk, behind a towering pile of paper, with a stinky cigar and a permanent sneer. A nasty, abrasive, brusque attitude is essential equipment for the job.

If you're a man.

Because, let's face it, a man who is brusque in the workplace is perceived as talented, ambitious, confident, and competent. Abrasiveness adds to the image: he doesn't have time for nonsense. He's not here to be your friend or mentor. Things need to get done. He doesn't suffer fools gladly. When you are working for him, you'd better do a good job, or heads will roll. I can't tell you how many nasty, brusque men I have worked for. Everyone knew they were nasty and brusque, and if you were new and your coworkers liked you, they might warn you before you headed off to his office: He's really mean. Don't take it personally. He's like that to everyone. Come back after he yells at you and we'll get a cup of coffee so you can have a moment to de-stress.

A man who is kind, gentle, and nurturing might find a path to success in the office, but he doesn't inspire the kind of awe and trembling fear that his meaner colleagues use to get the job done - fast and efficiently.

A female boss, however, is expected to be different. She is supposed to be a role model to other women, to take them under her wing and be a mentor to them, or at least a good example of what's possible for them someday. She is kind and understanding. She's an expert on work-life balance. (When did you ever hear a man described as having really perfected his work-life balance?) She had to claw her way to the top, but she's expected to drop a rope ladder for those below her, so they can get there more easily than she did.

If she's not like that, gentle, accommodating, and helpful in every way, we have a full vocabulary to describe her that we would not use to describe our male bosses. She's a bitch. She's an emasculating maneater. She hates men. She thinks women should undergo the same hazing that she underwent. She's not interested in helping anyone but herself. She's - yes - bossy.

The problem is that you often need to be bossy - abrasive, brusque, intimidating, decisive - in order to succeed in a fast-paced workplace like a newsroom. But if you're a woman, you're not allowed to be that way. Being bossy is such a negative trait in women that a huge social media movement has sought to ban the use of the word itself. Call a woman anything but bossy! Call her a leader! Call her creative and inspiring! Call her gentle and nurturing, demanding and authoritative, but don't ever, ever call her bossy.

And if she turns out to be bossy, you need to let her go. Because we can't have that. The mean executive editor with the cigar and the snarl is by definition a man, because women can't snarl. Or be mean. It just doesn't fit into our paradigm.

I think it's time for the paradigm to change. We can't equip women for leadership, and expect them to achieve the same things men achieve, if we frown on them when they behave in exactly the same way their male colleagues behave. It would be nice if everyone could be sweet and nurturing all the time, but we all know that's not how the world works. If a job requires brusqueness or a bit of unpleasantness from time to time, we have to allow people to be that way, without regard to their gender. Let's let the boss be bossy. The world will be a fairer place if we do.