Did Ginsburg move Kennedy to narrow Alito's Hobby Lobby opinion?

(The contents of this post arose from close readings of the case and discussions with several folks--my thanks for inspiring the examination.)

Justice Alito's majority opinion in Burwell v. Hobby Lobby (PDF) includes two extended analyses that ultimately read as dicta, because the majority opinion refuses to address the issue--and they are both issues from which Justice Kennedy's concurring opinion appears to distance itself. Further, Justice Kennedy's concurring opinion appears to be a direct response to Justice Ginsburg's dissent. So it may be worth asking the question: did Justice Alito once have a much broader opinion, one that was later restrained in two aspects because Justice Kennedy refused to join them after reading Justice Ginsburg's dissent?

Compelling Government Interest

Here's how Justice Alito's majority opinion addresses the compelling government interest (with some citations omitted or abbreviated):

HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro. This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro.

In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.”

The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have nocontraceptive coverage without cost sharing at all.

HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.” But the contraceptive mandate is expressly excluded from this subset.

We find it unnecessary to adjudicate this issue.

Well, that's an unusual conclusion! First, a brief note on Justice Alito's history on this issue: when it comes to asserting a "compelling government interest," Justice Alito has been no friend of the government when it has found the ability to carve out exceptions for some reasons, but not religious reasons.

Consider the "police-beard case" he decided on the Third Circuit. The government asserted a compelling interest in having Muslims shave their beards to serve on a municipal police force. But the government had carved out a medical exception to its beard policy. Justice Alito found that there was no compelling government interest where there had been some non-religious exceptions granted.

That's the logic much of this lengthy excerpt assumes. The government has created exceptions to its policy; that, to Justice Alito, seems like thin gruel as a basis for the government to turn around and assert that it really does have a compelling interest when it comes to religious exemptions to its policy. He emphasizes that the "interest" is not just generic ("women's health," etc.), but precise, citing O Centro.

But, curiously, Justice Alito, after several paragraphs of suggestively weighing against the government, turns to say that the Court need not decide the issue.

Justice Kennedy, however, appears to reject any compelling government interest.

As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. There are many medical conditions for which pregnancy is contraindicated. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.

Justice Kennedy, then, seems to reject all of the points raised arguendo (and in dicta) by Justice Alito--he does not construe "compelling government interest" narrowly, and he does not view the government's granting of some non-religious exemptions as fatal to a compelling government interest in its refusal to grant religious exemptions.

But Justice Ginsburg notes in her dissent (which Justice Kennedy characterizes as "powerful"):

Perhaps the gravity of the interests at stake has led the Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. [Footnote 23: Although the Court’s opinion makes this assumption grudgingly, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.”]

...

Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court suggests, Congress would not have created these exclusions.

Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., (FMLA, ADEA, ADA, and Title VII).

The ACA’s grandfathering provision, allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of coinsurance, deductibles, that sort of thing.” Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” The percentage of employees in grandfathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradually transitioning employers into mandatory coverage.”

So, too, why does Justice Ginsburg exert so many paragraphs to refuting an argument that the majority raises arguendo and ultimately assumes without deciding? And why relegate the tip to Justice Kennedy in a quick footnote after speculating what "[p]erhaps" motivated the majority?

Least Restrictive Means

Justice Alito's opinion similarly opines at length that the least restrictive means would be government purchase of the contraceptives in dispute:

The least-restrictive-means standard is exceptionally demanding, see City of Boerne, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See [RFRA] (requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest” (emphasis added)).

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA,are designed primarily for emergency use. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely,however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal.

HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” [Footnote 37: here the Court examines burdens that benefit third parties in a lengthy footnote. -ed] But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.

In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test.

Another curious conclusion! Why not? Justice Alito's opinion continues:

HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.”

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. [Footnote 39: the Court notes that the Little Sisters of the Poor case challenges this accommodation in a separate RFRA claim. -ed] At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.

Note first that this conclusion on "least restrictive means" leaves open a question--the means may still violate RFRA for other claims! So, the stronger basis for the majority's opinion--the one that would emphatically not result in any religious objections--is set aside in favor of the potentially more problematic option (in the majority's own terms).

Second, consider what Paul Clement argued at oral argument (PDF) in response to a question from Justice Sotomayor:

JUSTICE SOTOMAYOR: Will your clients claim that filling out the form, if you're saying they would claim an exemption like the churches have already?

MR. CLEMENT: We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

So because of the narrow objection of Hobby Lobby in this case--at least as articulated by their counsel--the bigger problem of the self certify provision is reserved for another day. (But, it is curious that Justice Alito did not cite to this concession at oral argument.)

Justice Kennedy praises this result:

But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases.

The means the Government chose is the imposition of a direct mandate on the employers in these cases. But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.

On this record and as explained by the Court, the Government has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under this established framework. RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.

He then specifies why he would not reach the initial issue raised in Justice Alito's opinion, that of government subsidy:

The parties who were the plaintiffs in the District Courts argue that the Government could pay for the methods that are found objectionable. In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place.

It is an intriguing gloss on RFRA--the "least restrictive means," to Justice Kennedy, at least in these terms, suggests that the government may not have to pursue the truly least restrictive means, but, perhaps, a kind of balance of a not-very-restrictive means, so long as the cost is low (i.e., "without imposition of a whole new program or burden on the Government"). (Further, some have already speculated that his approval of this regime suggests he would not be inclined to favor challenges to the self certify framework.)

Justice Ginsburg, like Justice Alito, pursues the "government subsidy" line of argument at length before acknowledging it is merely dicta:

Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Moreover, Title X of the Public Health Service Act “is the nation’s only dedicated source of federal funding for safety net family planning services.”
“Safety net programs like Title X are not designed toabsorb the unmet needs of . . . insured individuals.” Note, too, that Congress declined to write into law thepreferential treatment Hobby Lobby and Conestoga describe as a less restrictive alternative.

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.

Ultimately, the Court hedges on its proposal to align for-profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed alternative was acceptable, counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87.

Again, the bulk of the examination is on the government subsidy means; the self certify issue is almost an afterthought.

--

Now, perhaps all of this is nothing. Perhaps the opinions were naturally written in this way. But given some of the ostensibly superfluous discussions on materials assumed away and not deemed essential to the Court's holdings, it's at least a plausible interpretation that Justice Ginsburg's first dissent moved Justice Kennedy to distance himself from two key portions of the majority's opinion, which then was modified to ensure that there were five outright votes on the salient issues in the case.

And it's very possible, then, that Justice Kennedy's concurring opinion was a part of a bargain to push the majority to bracket two broader issues (finding no compelling government interest because of other exemptions in the overall statutory scheme, and finding that a less restrictive alternative would not be a matter of pending litigation in other RFRA claims). And it's possible that he was driven to that view after Justice Ginsburg circulated her dissent.

So, is this post rampant speculation, or a plausible interpretation?

Citizens United in Affordable Care Act litigation, Part VII

Following up on Part VI, we now have the Supreme Court's opinion in Burwell v. Hobby Lobby (PDF).

At oral argument (PDF), no one mentioned the Court's decision in Citizens United. That's probably appropriate, because Hobby Lobby turns primarily on a statute (i.e., the Religious Freedom Restoration Act), not the First Amendment. Granted, that statute purported to incorporate (and modify) the Supreme Court's earlier First Amendment jurisprudence--but that wasn't what the justices seemed to focus on. But that's where the justices appeared to have some of the most difficulty: deciding what, exactly, that jurisprudence may have included. (And there is voluminous analysis across the Internet on this.)

Indeed, the only mention of Citizens United arose in a fleeting mention in Justice Ginsburg dissent:

Corporations, Justice Stevens more recently reminded, "have no consciences, no beliefs, no feelings, no thoughts, no desires." Citizens United v. Federal Election Comm'n.

For previous coverage see:

Part I

Part II

Part III

Part IV

Part V

Part VI

(By the way, an interesting note for timing purposes: the Tenth Circuit was the first federal appellate court to reach this issue, last June. Cert was granted, and the case was then scheduled for oral argument on March 25. This June, the Tenth Circuit is the first federal appellate court to reach the issue of the constitutionality of marriage amendments post-Windsor.)

National Popular Vote passed in New York legislature

After perceived shortcomings in the electoral college in the 2000 election, and after Bush v. Gore, the National Popular Vote ("NPV") was introduced as a mechanism to convert the election of the president from the electoral college to popular vote. The goal was to avoid federal involvement: rather than enact a constitutional amendment, the NPV could garner support from individual states to give their electoral votes to the winner of the national popular vote, rather than the winner of their own state's popular vote.

Such unilateral disarmament would not be politically feasible, so the NPV included a trigger that conditioned it taking effect only when states comprising a majority of the electoral college's votes (at least 270) had enacted the legislation.

There was a flurry of enactments several years ago, but the pace slowed. That said, progress continues. Yesterday, New York's assembly joined its senate in supporting the interstate compact. The NPV is halfway toward taking effect; 136 electoral votes' worth of states have passed it. If signed by Governor Andrew Cuomo, it would push up to 165 votes.

As the proposal has been more popular in Democratic-controlled state legislatures, there are few big prizes left for NPV supporters, as California (55 electoral votes) and Illinois (20) have already enacted it. It has made progress previously in Pennsylvania (20). This year, it remains actively pending in Arizona (11), Connecticut (7), Nebraska (5), and Oklahoma (7). (The Wikipedia entry has excellent citations to the pending legislation.)

I've written extensively about the electoral college. I've concluded that the NPV likely fails absent congressional consent because it runs afoul of the Compact Clause, which prohibits states from entering agreements with each other that shift the balance of political power toward compacting states. I've also written about the "invisible federalism" undergirding presidential elections and explained that complications would arise should we decide to have 50 states' individual elections commingled into a single nationwide election.

Several more states would need to enact the compact before it takes effect, but New York's support shows that the issue is not over yet.

3D printing, plastic guns, the autopen, and Noel Canning

Congress has approved a 10-year extension on the ban on plastic weapon (specifically, weapons that can evade metal detectors). With increased access to 3D printing, there is concern that such guns might become prevalent. The law is set to expire tonight, December 9, at midnight.

President Barack Obama, however, is flying to South Africa to attend the funeral of Nelson Mandela. The White House has indicated that Mr. Obama will sign the bill with an "autopen."

Professor Terry Turnipseed has written on the use of the autopen. (And this is not unprecedented: see, for instance, discussion from Professor Josh Blackman on the matter.) Even though there are memoranda from the Department of Justice indicating it is constitutional, Professor Turnipseed makes a persuasive that the use of the use of the autopen is not a constitutional alternative to an actual signature. [UPDATE: This is a close question for me--I think Professor Turnipseed makes a persuasive case, but I could be persuaded otherwise. Accordingly, this post is an exercise based upon the assumption he is correct.]

The consequence, then, is that the bill is unsigned, and after 10 days (excluding Sundays), one of two things happen. If Congress is in session, the bill becomes law. If Congress is not in session, the bill is vetoed, known as a "pocket veto."

In most cases, Professor Turnipseed notes, it means that the law is not in effect for 10 days, and it usually becomes law after that. Most of the time, the law simply has not taken effect, or it lapses until the end of the 10 days.

But Congress has indicated that it would adjourn December 20. Ten days (excepting Sundays) take us through the end of December 20. So after midnight, we arrive at December 21, and we see that Congress is not session. And that means that the law has been vetoed.

This, of course, assumes that someone challenges the law (perhaps after arrest), and that a court accepts the argument that the law was vetoed because the use of the autopen was unconstitutional.

But there is one option at Mr. Obama's disposal. Article I, section 7 reads that the law takes effect after 10 days, "unless the Congress by their Adjournment prevent its return, in which case it shall not be a Law."

The Senate may well hold pro forma sessions after the intended recess on December 20.

Which means that Mr. Obama would be placed in the interesting position of defending the validity of the law after that date by arguing that the pro forma meetings of Congress mean that it has not entered into recess between sessions. Which would place him at odds with his position in the Noel Canning case. (There's a great deal more subtlety in the constitutional interpretation in the recess appointments cases, of course.)

It's deeply, deeply unlikely, I suppose... but it's the convergence of factors that makes this problem so interesting (to me, at least!).

Do nearly half of Americans live in precincts that suffer from long lines?

When I saw this headline from a story on a site operated by a subsidiary of AOL Inc., I thought it couldn't be right. And here was the claim: "Nearly half of Americans live in precincts where long lines at the voting booth were a problem in the 2012 election cycle, according to a survey conducted by President Barack Obama’s Presidential Commission on Election Administration."

Except, that it isn't true.

Yesterday, the commission held an event. You can watch the video of the actual event, which is, inconveniently, not linked in the piece that makes the claim above. And the video contains the actual survey results. The relevant question asked, around the 1 hour, 9 minute mark of the video, is as follows:

Q: Did your jurisdiction experience long lines (approximately one hour or more) at any precincts or early voting sites in the 2012 general election?

A (weighted by eligible voters):

Yes, long lines were common and widespread: 1.9%
Yes, but only at some locations: 26.2%
Yes, but only at one or two locations: 21.3%
There were no appreciable lines in my jurisdiction: 48.0%
Don't know: 2.6%

Strictly speaking, if you live in a jurisdiction (a large city or a small town) that had one precinct with long lines (which would be about 21% of eligible voters), you would, under the headline of the piece, "live in places where election officials admit long lines are a problem." But, that is fairly deceptive: you live in such a place, but it, in all likelihood, does not affect you. There is, of course, the risk it affects you. And it obviously affects some voters there, and some quite substantially. But it certainly does not affect "nearly half" of voters in a way that the sensationalist headline of the story implies.

The text of the story is worse, because it contains an outright inaccuracy. It says that "nearly half of Americans live in precincts where long lines at the voting booth were a problem," (emphasis added) which isn't what the survey said. "Jurisdictions" are far larger in scope than "precincts," which is why a "jurisdiction" may have "some locations" or "only one or two locations" with long lines.

This is not to say that long lines are not a problem. They clearly are in some places, and Dr. Charles Stewart has conducted excellent research about drilling down the locations and length of lines. (There's very good discussion over the 10 minutes in the video: he notes that it indicates that long lines are "rare," but that it might affect a high volume of voters in that "rare" precinct, and that the risk is higher in big jurisdictions.)

But I don't think this sensationalist "journalism" is productive when it contains an important inaccuracy and fails to link to the relevant source. As the nonpartisan commission is attempting to identify problems with actual facts, distorting them (perhaps in the name of partisanship, or in an effort for sensationalism) doesn't move the ball much.

Citizens United in Affordable Care Act litigation, Part VI

Fresh off the heels of the fifth installment in this series,  the Seventh Circuit in Korte v. Sebelius has now weighed in on the ability of corporations to exercise religion and, as might have been expected, fractured and continued the divide among courts in the Third, Sixth, Tenth, and DC Circuits. This is, by far, the most extensive and thoughtful discussion of the issue, from both sides. I'll excerpt only fragments here (those most directly implicating Citizens United, and fragments that also heavily rely on Bellotti).

From the majority opinion:

For the sake of completeness, we note as well that nothing in the Court’s general jurisprudence of corporate constitutional rights suggests a nonprofit limitation on organizational free-exercise rights. Prior to Smith, and continuing to the present day, the Court has held that corporations may claim some but not all constitutional rights.

For example, long before Citizens United reinvigorated the political-speech rights of corporations, see Citizens United v. FEC (2010), the Court confirmed that corporations have free-speech rights, see, e.g., . . . First Nat’l Bank of Bos. v. Bellotti (1978); N.Y. Times Co. v. Sullivan (1964). Prior to Smith the Court held that the Fourth Amendment protected corporations from unreasonable searches and seizures. Corporations qualify as persons for at least some purposes under the Due Process and Equal Protection Clauseso f the Fourteenth Amendment. On the other hand, prior to Smith the Court excluded corporations from the Fifth Amendment privilege against self-incrimination, and the emerging right of privacy.

These cases do not yield a unifying theory of corporate constitutional rights, but Bellotti contains some language that might be read to suggest a general decisional approach: “Certain ‘purely personal’ guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantee has been limited to the protection of individuals.” And this: “Whether or not a particular guarantee is ‘purely personal’ or is unavailable to corporations for some other reason depends upon the nature, history, and purpose of the particular constitutional provision.” Id. But the Court has never elaborated.

Ultimately, we don’t need to parse the cases on corporate constitutional rights too finely. We are confronted here with a question of statutory interpretation. Our task is to determine whether prior to Smith it was established that a closely held, for-profit corporation could not assert a free-exercise claim. It was not so established. We conclude that K & L Contractors and Grote Industries are “persons” within the meaning of RFRA.

And from the dissenting opinion: 

Perhaps the best argument in favor of according free exercise rights to corporations is that the right to free speech already has been recognized as among those rights that corporations enjoy. Citizens United (coll. cases); Bellotti (coll. cases). But beyond the fact that the free exercise clause, like the free speech clause, resides in the First Amendment, I find little, if anything, in the speech cases that speaks to the nature of religion and why corporations, as a matter of history and logic, should be able to assert free exercise rights. Corporations, because they have property, financial, and political interests, of course have a free speech interest in protecting and promoting those interests and in pursuing their agendas, be their stated goals charitable, religious, political, or profit-making. Beyond those parochial interests, Bellotti (which struck down a law prohibiting a corporation from making expenditures to influence the outcome of any public referendum other than one which directly affected the property, business, or activities of the corporation), stressed the core First Amendment interest in a robust dialogue on issues of public concern, an interest which extends beyond a particular speaker’s wish to express his views to include the public’s right to hear his views and those of others. The Court added that “[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its sources, whether corporation, association, union, or individual.” Decisions recognizing the speech rights of corporations thus rest “not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access todiscussion, debate, and the dissemination of information and ideas.”

Religion, by contrast, is a personal undertaking. Certainly there is a collective societal interest in protecting religious liberty, and religion can and has influenced the public sphere in positive ways. But religious faith is, by its nature, an intensely individual experience, and for the reasons that follow, I believe it likely is one of those “purely personal” constitutional rights that the Supreme Court will not extend to corporations—certainly not to secular, for-profit corporations.

…

A corporation is a legal construct which does not have the sentience and conscience to entertain such ultimate questions. “In the words of Chief Justice Marshall, a corporation is ‘an artificial being, invisible, intangible, and existing only in contemplation of law.’” It is a creature of man, not of God. It “believes,” if it can be said to believe anything, only what the people who found, own, and/or manage the corporation believe. Citizens United (Stevens, J., concurring in part & dissenting in part) (“It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.”).

Indeed, it strikes me as potentially demeaning to religious faith to say that a corporation should be said to possess the same right to free exercise of religion that a human being enjoys in this country. Inextricably bound as it is with a person’s sense of himself, his origins, the world, and what life is, religious belief (including the lack of such belief) is a defining trait of humankind; and this is one reason why we view it as a core component of individual freedom: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Planned Parenthood of Se. Pennsylvania v. Casey (1992). To say, as the court does today, that the right to exercise one’s religious faith may be asserted on the same terms by a legal construct—an incorporated currency exchange, accounting firm, or automobile repair shop, for example—as by a human being, is, to my mind at least, irreconcilable with the very essence of religious faith and, for that matter, humankind.

There is much more discussed in the opinions, so read them at length. 

Citizens United in Affordable Care Act litigation, Part V

Following up on Part IV,  the D.C. Circuit today (PDF) in Gilardi v. U.S. Dep't of Health and Human Servs. took on the issue of whether for-profit corporations can exercise religious beliefs.

From the opinion of Judge Brown (and this portion was joined by Judge Edwards):  

Citing Citizens United v. FEC, the Freshway companies argue that corporations—religious or otherwise—are entitled to the full array of First Amendment protections, including the right to free exercise.  They are not the only proponents of this position. See Hobby Lobby; see also Conestoga Wood. There is an appeal to this simple reasoning; after all, the free-exercise and free-speech rights are enshrined in the same constitutional provision, separated only by a semicolon.

Perhaps Appellants’ constitutional arithmetic, Citizens United plus the Free Exercise Clause equals a corporate free-exercise right, will ultimately prevail.  But we must be mindful that Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak. See Conestoga Wood. When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.

Consider Bellotti—the progenitor of Citizens United. When the Bellotti Court declared “political speech does not lose First Amendment protection ‘simply because its source is a corporation,’” Citizens United (quoting Bellotti), it reviewed many cases in which the Court invalidated a state law because it “infringe[d on] protected speech by corporate bodies.” Bellotti. In other words, Bellotti crystallized a robust body of caselaw giving rise to the constitutional right of corporate political speech, which the Citizens United Court could rely on as a firm foundation.

No such corpus juris exists to suggest a free-exercise right for secular corporations. Thus, we read the “nature, history, and purpose” of the Free Exercise Clause as militating against the discernment of such a right.  When it comes to corporate entities, only religious organizations are accorded the protections of the Clause.  And we decline to give credence to the notion that the for-profit/non-profit distinction is dispositive, as that, too, is absent from the Clause’s history.  Fortunately, we need not opine here on what a “religious organization” is, as the Freshway companies have conceded they do not meet that criterion.

Judge Randolph did not join this part of Judge Brown's analysis:

I do not join parts III and IV of Judge Brown’s opinion because I do not believe we need to reach the potentially far-reaching corporate free-exercise question. Other courts in contraceptive-mandate cases have “decline[d] to address the unresolved question of whether for-profit corporations can exercise religion.” The same approach may be used without deciding the rights of the Freshway Corporations because the government could enforce the mandate against the corporations only by compelling the Gilardis to act. Since “it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. U.S. Drug Enforcement Admin. (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment).

We should be particularly hesitant to pass unnecessarily on such a complex issue. If secular for-profit corporations can never exercise religion, what of profitable activities of organized religions? If only religious for-profit organizations have a free-exercise right, how does one distinguish between religious and non-religious organizations? Why limit the free-exercise right to religious organizations when many business corporations adhere to religious dogma? See Mark L. Rienzi, God and the Profits: Is There Religious Liberty for Money-Makers?, 21 Geo. Mason L. Rev. (manuscript at 11-24) (forthcoming fall 2013). If non-religious organizations do not have free-exercise rights, why do non-religious natural persons (athiests, for example) possess them? If a corporate free-exercise right is recognized, in any form, there are equally challenging secondary questions. How should the beliefs of a religious corporation be determined? Can publicly traded corporations be religious? If so, do they take on the religions of their shareholders as a matter of course? If a religious corporation is sold, does it retain its religious identity? These questions, challenging in themselves, would confront us in different permutations across the diverse entity forms and organizational structures of the American business landscape.

UPDATE: I have generally avoidd citing second-hand commentary about these decisions, but this column by Emily Bazelon and Dahlia Lithwick contains several misleading (either by lack of understand, obfuscation, or some combination) claims about the role of Citizens United in the court's decision. The relevant text of the court's actual holding is cited above.

Citizens United in Affordable Care Act litigation, Part IV

Fresh off the heels of yesterday's Part III, here comes Part IV.  A petition for writ of certiorari (PDF) has been filed with the Supreme Court appealing the Third Circuit's decision in an Affordable Care Act case regarding a business alleging a right to religious liberty. The petition invokes Citizens United twice, noting that "other areas of First Amendment law, including the free speech doctrine, recognize that 'First Amendment protection extends to corporations,'" "'for-profit and non-profit.'" (p. 10 & 25)

Citizens United in Affordable Care Act Litigation, Part III

After my first two posts about the link between the Supreme Court's decision in Citizens United  and litigation under the Affordable Care Act, we have a third opinion from a federal circuit court.  The Sixth Circuit, in Autocam Corp. v. Sebelius (PDF), has rejected a First Amendment religious liberty challenge from manufacturing companies. It includes little discussion about Citizens United, but it does mention it.

Autocam’s attempt to fill this void by relying on freedom of speech cases, most notably Citizens United v. Federal Election Commission, is unavailing.  In Citizens United, the Court “recognized that First Amendment protection extends to corporations” and collected a significant number of cases recognizing this rule.  But these cases all arose under the Free Speech Clause. [citing the Third Circuit's opinion on this.] No analogous body of precedent exists with regard to the rights of secular, for-profit corporations under the Free Exercise Clause prior to the enactment of RFRA.  The Free Exercise Clause and Free Speech Clause of the First Amendment have historically been interpreted in very different ways. Id. (tracing the differences in the Court’s treatment of these clauses). Therefore, the Court’s recognition of rights for corporations like Autocam under the Free Speech Clause nearly twenty years after RFRA’s enactment does not require the conclusion that Autocam is a “person” that can exercise religion for purposes of RFRA.

 (some citations omitted)

It's curious that the Sixth Circuit includes the discussion of Citizens United , the First Amendment, and Free Exercise in its interpretation of whether a company is a "person" for purposes of the Religious Freedom Restoration Act. The statutory interpretation question is a fairly different matter than the scope of constitutional protection. I suppose, reading through a bit of the court's awkward analysis, one could argue that because there had been no precedent contemplating the kind of Free Exercise right anticipated in this case prior to Employment Division v. Smith, Congress did not contemplate that kind of right when it enacted RFRA.

Perhaps part of the court's awkward analysis arose because of a decision by the litigants.  Plaintiffs apparently only appealed a preliminary injunction denial on the RFRA claim and did not include a First Amendment claim in the appellate brief.

If that's the case, then the usefulness of Citizens United as analogy drops dramatically, which explains why the court's discussion is brief.