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OPINION | Kent Greenfield

The Supreme Court’s subterfuge

he Supreme Court ruled that some businesses can, because of their religious beliefs, choose not to comply with requirement that contraception coverage be provided to workers at no extra charge.

AP

The Supreme Court ruled that some businesses can, because of their religious beliefs, choose not to comply with requirement that contraception coverage be provided to workers at no extra charge.

We’ve been had. And so has Justice Anthony Kennedy.

The Supreme Court ruled recently in Burwell v. Hobby Lobby that corporations are “persons” under the Religious Freedom Restoration Act. Now Hobby Lobby and other corporations can conscientiously object to Obamacare’s requirement to provide health insurance that includes contraceptives.

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Justice Samuel Alito’s opinion for the Court brimmed with reassurances of its modesty. The ruling would not prevent women from receiving contraceptive care. Waivers would be limited to corporations owned by families. The decision would not undermine other regulatory protections.

Meanwhile, Justice Ruth Bader Ginsburg’s 35-page dissent called the Court’s opinion one of “startling breadth.”

These opinions hint at a behind-the-scenes fight over Kennedy, often the swing vote on social issues. At oral argument, Kennedy expressed concern both for religious businesspeople forced to act against their consciences and for employees who would lose health insurance. For Alito to win Kennedy, he had to claim modesty; Ginsburg had to convince Kennedy that a Hobby Lobby victory would risk a cascade of corporate claims.

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Kennedy eventually sided with Alito, writing separately to explain that Alito’s opinion did not have the “breadth and sweep” alleged by Ginsburg. But Kennedy should have listened to Ginsburg. It is one thing to craft a modest opinion. It is another to use claims of modesty to mask expansive logic. Alito did the latter, and lower courts faced with future cases will be forced to apply the logic, rather than the rhetoric, of the opinion.

Alito’s focus on family-run businesses, for instance, is subterfuge. He uses the term “closely held,” meaning companies whose stock is not publicly traded. That includes most companies in America, family-run or not, some of which are gigantic. Private companies such as food multinational Cargill, conglomerate Koch Industries, and tech giant Dell employ tens of thousands of employees.

Worse, Alito’s logic is not limited to private companies. Public companies, too, are swept into his admission that “no known understanding of the term ‘person’ includes some but not all corporations.” He says merely that it “seems improbable” that the shareholders of public corporations would agree to assert religious freedom claims. But scores of public companies are dominated by a handful of people — Nike, Tyson Foods, Ford Motor, or Google, to name a few. The Walton family owns about half of all Walmart’s stock, for example, and could win a vote to assert a religious objection without breaking a sweat.

As for whether the ruling would expand past health care, Alito reassured that employers could not assert religious reasons to discriminate on the basis of race. But what about discrimination on the basis of sex, sexual orientation, gender identity, disability, or age? The opinion is silent. Chick-fil-A, for example, could now assert a religious objection to any federal requirement that employers provide marriage benefits to same-sex spouses.

Alito’s reassurances that the ruling would not prevent women from receiving contraceptives also ring hollow. He explains that Obamacare already contains exceptions allowing religious groups to file a form to avoid the contraceptive requirement, which in turn triggers an obligation for insurance companies to provide contraceptives on their own tab. Religious corporations could use the same mechanism, he says. But late last week — after the term had ended — the court issued a preliminary ruling in favor of an employer asserting a conscientious objection to filing the form. That prompted Justice Sonia Sotomayor to file a dissent, rare in such a preliminary disposition, accusing the court of undermining the alternative it had just touted: “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

An ironic comparison to Hobby Lobby is Kennedy’s opinion last summer in United States v. Windsor, striking down a provision of the Defense of Marriage Act. Kennedy reached the right result, but submerged his logic. He failed to articulate the constitutional basis for his decision, depending instead on vague rhetoric of dignity. It was left to Justice Antonin Scalia, in dissent, to reveal Kennedy’s constitutional logic, which he argued would spell the end of bans on same sex marriage.

As it turns out, Scalia was right. Subsequent lower court rulings have been virtually uniform in striking down marriage bans. In effect, they have used Scalia’s dissent to interpret Kennedy’s majority.

The same will unfortunately be true with Hobby Lobby. Ginsburg’s warnings about the opinion’s breadth now provide a road map for employers eager to raise religious objections. She and Scalia will then have something in common: They will have been proven right in important cases. And they will hate it.

Kent Greenfield is professor of law at Boston College, where he teaches constitutional and corporate law.
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