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RLUIPA, Land Use and the Hobby Lobby decision

Written by Daniel P. Dalton on August 13, 2014 Category: Land Use and Zoning, RLUIPA
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It is always a significant event in the legal community when the Supreme Court of the United States (SCOTUS) makes a ruling on a case. Lawyers all across the country pack into the courthouse or watch online as the opinions are handed down. Often, the opinions are the end of years of hard work, and some of them greatly impact our daily lives. The recently-decided Burwell v. Hobby Lobby is a case that will undoubtedly impact both businesses and religious rights. Since these areas of law are integral to our firm, we have decided to include a facts-only summary of the case. Feel free to contact us with any questions you might have about the impacts of this case.

On June 30, the SCOTUS ruled that the so-called “contraceptive mandate” of the Affordable Care Act, better known as “Obamacare,” cannot be used to require a closely-held corporation to provide health insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.

While many SCOTUS observers were expecting an opinion written by the Chief Justice, the Court offered a surprise when it was announced that the opinion in Burwell v. Hobby Lobby was written by Justice Alito. The decision split the Court 5-4 along ideological lines with Justice Kennedy, as usual, casting the decisive vote.

Before the Court was the question of whether the “contraceptive mandate” violated the Religious Freedom Restoration Act of 1993 (RFRA). Under RFRA, the federal government must not take any action which substantially burdens the exercise of religion unless such action is the least restrictive means of furthering a compelling government interest. The legal community knows this familiar test as “strict scrutiny.”

Before proceeding to the strict scrutiny analysis, the Court first had to determine if Hobby Lobby and the other corporate parties in the case were indeed “persons” capable of the “exercise of religion.” While the legal fiction of a corporation as a “person” is common and well-established, the question of corporations exercising religion was a closer one. The majority concluded that corporations were indeed capable of the “exercise of religion” for purposes of RFRA since, in part, corporations may be established “for any lawful purpose or business.”

Turning to the strict scrutiny test, the majority did not expressly decide the issue of whether or not there was a compelling government interest furthered by the “contraceptive mandate.” Instead, the majority assumed that the government interest (ensuring that all women have ac­cess to all FDA-approved contraceptives without cost sharing) was indeed compelling and then proceeded to the second part of the strict scrutiny test.

In the opinion of the majority, the government did not use the least restrictive means possible of furthering the interest of ensuring that all women have ac­cess to all FDA-approved contraceptives without cost sharing. This was because, in short, the majority concluded there were other ways of ensuring that women receive contraceptive care that would be less burdensome on the religious exercise of Hobby Lobby and the other parties to the case. The main option proposed by the majority was for the federal government to provide such coverage rather than private employers.

Justice Kennedy wrote a concurring opinion which pointed out that the opinion of the Court should not be used as a shield by companies to practice discrimination under the guise of religious exercise. The majority also went out of its way on several occasions to attempt to limit the scope of the opinion.

The main dissent, written by Justice Ginsburg, states that the opinion of the Court was one “of startling breadth.” In the opinion of the dissent, RFRA was not meant to serve the purpose for which the Court uses it. Justice Ginsburg said that RFRA was not meant to create any new rights, and in her opinion, the Court had used it to do just that.

Justice Ginsburg first argues that RFRA should not even apply in this case since Hobby Lobby and its compatriots should not be able to take advantage of its protections. Further, she goes on to argue that there is no less restrictive, equally effective way for the government to further its compelling interest of ensuring that all women have ac­cess to all FDA-approved contraceptives without cost sharing. Finally, the dissent argues that the majority’s opinion will open the door to many other claims of religious exemption that would not be permissible.

Although the issue is undoubtedly “under the radar,” this case also provides some intrigue for land use, and particularly religious land use, attorneys. Justice Alito’s opinion includes a discussion of the Religious Land Use and Institutionalized Persons Act (RLUIPA). Justice Alito states that RLUIPA’s protection of the “exercise of religion” is wholly separate from First Amendment protections, and “exercise of religion” must be given the same broad definition under RFRA since it explicitly references the RLUIPA definition. A close reading of Justice Alito’s discussion on RLUIPA and RFRA can logically be taken as leaving the door open to RLUIPA claims by for-profit companies as long as the “exercise of religion” is sincere.

Justice Ginsburg clearly sees the possible implications of the Court’s RLUIPA discussion. In her dissent, she makes a strong attempt to limit the possible expanding of RLUIPA by the majority. She even goes out of her way to state in footnote 12: “To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would ‘dramatically expand the statute’s reach’ and deeply intrude on local prerogatives, contrary to Congress’ intent.” While this discussion may not lead to any expansion of the common understanding of RLUIPA, the possibility of for-profit companies taking advantage of RLUIPA land use protections could have massive implications on land use law. Land use attorneys will monitor any further developments on this issue intently.

This case is one that will have effects on religious rights and business interests. There are many other points and questions that have not been addressed in this article, and the upshot of this case will likely not be known for some time. You can read the lengthy opinion at the SCOTUS website. The attorneys at Dalton & Tomich, PLC have extensive experience around the country with both religious and business matters. If you have any questions about these areas of law or any others, please do not hesitate to contact us.

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Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.