The best that can be said for the Supreme Court decisions in Hobby Lobby and Harris is … “It could have been worse.” (More)

Squirrels know about close decisions. When we’re moving around, we scamper and stop, and we change directions each time we scamper. We do that to confuse animals that want to have us for dinner, and not the nice kind of “have us for dinner” where they serve us macadamias. Those scamper and stop decisions are often close calls, and it’s always a relief to arrive safely at the mail room in New Venerable Hall.

So when I read the Supreme Court’s decisions in Burwell v. Hobby Lobby and Harris v. Quinn, I thought “Well, we didn’t get eaten.”

Or at least not yet.

For example, in his majority opinion in Hobby Lobby, Justice Samuel Alito did not hold that every corporation shares the religious beliefs of its directors and officers. On the other hand, he didn’t say Exxon or IBM couldn’t claim a religious belief. He just doesn’t think it will happen:

It seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders – including institutional investors with their own set of stakeholders – would agree to run a corporation under the same religious beliefs seems improbable.

I could note that, just a few years ago, it seemed “improbable” that a for-profit corporation like Hobby Lobby would claim to have religious beliefs. I could also note that Justice Alito didn’t include the differing religious beliefs of hundreds of thousands of employees in his “numerous practical restraints.” But I won’t note those points, because Justice Ruth Bader Ginsburg did in her dissent:

Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. [Citation omitted] Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.

One can only wonder, or one can reasonably infer that – for Justice Alito and the Court’s conservatives – a corporation’s religious beliefs, if any, are determined by its owners. At least until Exxon claims an RFRA exemption to some environmental law, citing a “sincerely-held religious belief.” Then, one might guess, Justice Alito or one of his fellow travelers will hold that the officers, not the diverse owners, choose the corporation’s religious beliefs.

Justice Alito conceded that ensuring cost-free access to birth control was a “compelling governmental interest,” but he argued that the HHS rule was not the “least restrictive means” to achieve that end. The least restrictive means, he wrote, would be for government to pay for it. As if House Republicans would ever agree to that. But Justice Ginsburg noted another flaw in his logic:

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 [citation omitted], or according women equal pay for substantially similar work [citation omitted]? 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?

As she notes, Justice Alito dodges the question by citing the procedure that HHS negotiated for religious organizations and religious non-profits:

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious non-profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims
while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

That’s a reasonable argument. Perhaps the upshot of Hobby Lobby will be that all health insurers provide a separate payment mechanism for birth control – with no premium or co-pay – because that’s less expensive for the insurer than covering the additional pregnancies that would result otherwise. And that’s fine, if the Court holds that doesn’t infringe the RFRA … and Justice Alito pointedly did not answer that question:

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. 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.

As Justice Ginsberg notes, Hobby Lobby also dodged that question in oral argument:

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.” [Citation omitted.]

Some religious groups have already objected to that solution, and those cases are still working their way through the system. Maybe the Court’s conservatives will say “We suggested this alternative in Hobby Lobby, so we can’t reject it now or we’ll look like judicial hacks.” Or maybe they won’t.

As for Harris, Justice Alito again purported to answer a very narrow question. The case involved home health care workers in Illinois, who are hired, trained, and fired by individual patients but are paid by by the state through Medicaid. Under Illinois law, all home health care workers were required to pay agency fees to SEIU because the union negotiated with the state on Medicaid’s payment rates.

Like most unions, SEIU are also politically active, mostly but not exclusively for Democratic candidates. Some Republican home health care workers said the agency fees violated their First Amendment rights by forcing them to pay for speech that benefits candidates they don’t like.

Public union agency fees have been upheld in a series of cases starting with Abood v. Detroit Board of Education. But while SEIU lobbied with the state legislature on Medicaid payment rates, the union played no role in the workers’ other terms of employment, which were set by individual patients and the workers they hired. Thus, the 5-4 majority held, these workers did not have to pay SEIU’s agency fees:

Because of Abood’s questionable foundations, and be­cause the personal assistants are quite different from full­ fledged public employees, we refuse to extend Abood to the new situation now before us. Abood itself has clear boundaries; it applies to public employees. Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems.

But look carefully at the opening clause in the paragraph above: “Because of Abood’s questionable foundations.” It’s clear that Justice Alito and at least some of the Court’s conservatives were ready to overturn Abood and gut public employee unions altogether.

It could have been worse. We didn’t get eaten. But we still have to scamper.

Good day and good nuts