Wheaton College case undermines Hobby Lobby

Just when we all were trying to understand the thinking of the U.S. Supreme Court in the case of Burwell v. Hobby Lobby, along comes Wheaton College v. Burwell and the Court undermines its own jurisprudence in the earlier case.

To review the facts: The Patient Protection and Affordable Care Act (ACA or “Obamacare”) requires employer group health insurance to cover contraceptive services. Recognizing the sincerity of some persons opposing such services, the government created exceptions for churches and for any charitable religious nonprofit that signs a Form 700 certifying its status and objection. Fair enough.

In Burwell v. Hobby Lobby, the Supreme Court ruled that it would be a “substantial burden” on the religious freedoms of “closely held” for-profit companies to require them to include contraceptives in their employee health care plans. The government, however, should use the “least restrictive alternative,” which the Court said would be met by signing a certifying Form 700, and allowing other insurers to step in to provide the coverage, thus “working around” (avoiding) the ACA law.

Now along comes Wheaton College, an evangelical Protestant liberal arts college in Illinois, which objects even to signing the form, arguing that even the “workaround” solution violates their religious liberty under the Religious Freedom Restoration Act of 1993, which applies to “Persons,” because that would encourage other insurers to cover birth control services which Wheaton College claims to oppose. Consequently, Wheaton requested the Court to issue an injunction against implementation of the law.

Appallingly, the Supreme Court backed away from its solution to Hobby Lobby and granted Wheaton’s request, announcing as it did so, that the same “workaround” the Court had so recently praised was also presumably unconstitutional, as it burdens the “religious freedom” of religious employers who oppose birth control not just for themselves, but for anybody else. So said the all-male majority.

This nearly unbelievable Court decision has given rise to a 16-page “barnstorming” dissent by the three women justices on the Court, Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. (And there’s no “War on Women” in this country?) No doubt oceans of printer’s ink will now be spilt on what is or is not a “substantial burden.” But if you ask me, the Court has lost sight of the forest for the trees.

In Wheaton, the Seventh Circuit Court raised a very convincing analogy: Suppose in wartime a Quaker, that is to say a truly “religious person” opposed to all wars, whether personally waged or waged by anyone else, receives a draft registration notice. He or she is required by law to register for the draft. The Quaker is obliged to sign a form certifying that he or she is a conscientious objector and that total pacifism is a tenet of the Quaker religion. In what way does merely signing the form violate the Quaker’s “free exercise of religion”? So, how does signing a form violate Wheaton College’s “free exercise of religion”?

Suppose further that on leaving the Draft Office, the Quaker is told by the draft officer, “Of course, this means we’ll have to draft someone in place of you.” (This is the “workaround” solution: Someone else will do it.) Now, according to Wheaton, the mere fact of signing off for oneself has the effect of forcing the next person to violate the Quaker’s own religious objection to all wars by anybody, regardless of the beliefs of that next person. What if the next person’s religious belief includes commitment to defense of country? Why should Wheaton College or any other employer have the right to impose their own beliefs on their employees who may believe that, as part of our Scriptural “dominion” over the Earth, we have a religious obligation not to overpopulate the planet?

In Hobby Lobby, the Supreme Court seems to assert that a for-profit business that is “closely held” by a few billionaires should have the right to impose their own personal beliefs and prejudices on their more numerous employees, who are real “persons” with real “religious beliefs” in the constitutional sense. Nothing in our Constitution remotely suggests that billionaires have more “religious rights,” or “beliefs” than other persons. So where and how did the Court cook up such an undemocratic idea?

There’s an even greater basic error in the Supreme Court’s thinking, in both Hobby Lobby and Wheaton College. The Constitutional guarantee of “free exercise of religion,” like constitutionally protected free speech, is a right of real flesh and blood human “persons,” not an artificial legal entity such as a corporation. For-profit corporations don’t have “religious beliefs.” The very reason the framers of our Constitution specified “persons” was precisely to distinguish “persons” from corporations. Furthermore, corporations are nowhere mentioned in the U.S. Constitution, or in the writings of any of the framers or signatories.

The Supreme Court got this dead wrong from the beginning in Citizens United and will go on making a mess of constitutional interpretation because their thinking is based on an utterly false premise. When you get up in the morning and start buttoning your shirt with the wrong button and button hole, you’ll find that even if you button all the rest of the buttons in correct order, you’ll still end up with the wrong result.

There’s no way the Supreme Court’s approach can deal with complex issues like Affordable Health Care, and the need, as the Constitution puts it, “to establish justice” for all Americans. It’s high time to read and think about what the Constitution actually says and means.

Anthony Piel is a former director and general legal counsel of the World Health Organization.