Exploring Whether Hobby Lobby Will Protect Christians and Satanists Alike

Whither Thou Goest, I Will Go:[1]

by Kimberly Waldin, Albany Government Law Review

I. Introduction

The Federal Health Resources and Services Administration through the Patient Protection and Affordable Care Act of 2010 (ACA) requires that employers provide to their employees insurance coverage that includes “[a]ll Food and Drug Administration (FDA) approved contraceptive methods [and] sterilization procedures.”[2] In June 2014, the Supreme Court ruled in Burwell v. Hobby Lobby Stores, Inc. that for-profit corporations may use the same opt-out provision of contraceptive coverage as religious employers pursuant to the Religious Freedom Restoration Act of 1993 (RFRA)[3] where the for-profit corporation is closely held and has a religious objection.[4] A month later, The Satanic Temple (hereinafter Temple) released a press statement announcing that the Temple would begin an initiative to support women’s health issues, starting with the availability on the Temple’s website of a “Political Information Opt-Out” letter to contest State-mandated acceptance of pre-abortion “Informed Consent” materials.[5] While the Temple believes its initiative would be legally viable under First Amendment protections, the Temple also believes the Hobby Lobby decision has created further support for the Temple’s position, and the Temple is willing to go to court to prove it.[6]

II. The Temple’s Position

Thirty-five states require women seeking an abortion, at minimum, to be counseled by their health care provider, and of those states, twenty-seven states require their respective state health departments to create written materials for distribution to those women.[7] The Temple’s believers are seeking to refuse mandatory acceptance of state-issued “Informed Consent”[8] materials regarding non-abortive options for an unwanted pregnancy because the Temple has found that a significant amount of the information regarding health issues surrounding abortions is scientifically inaccurate or politically biased.[9] This belief of the material’s inaccuracy or bias[10] is supported by outside organizations.[11] The Temple believes that all health-related decisions made by the individual must be “based on the best scientific understanding of the world, regardless of the religious or political beliefs of others.”[12] To receive and make health decisions based upon scientifically unfounded or inaccurate and biased information would violate the Temple’s belief that the individual’s body is “inviolable and subject to [that individual’s] will alone,”[13] presumably because the will of the State and its political stance on abortion would be impermissibly forced upon the female patient. As such, the Temple argues a believer has the right to abstain from receiving State-created, inaccurate information regarding health issues[14] under the First Amendment protection of Freedom of Religion and the Supreme Court ruling in Hobby Lobby.[15]

The connection to Hobby Lobby, as made by the Temple, is that the Justice Alito majority opinion described the four challenged contraceptive means as being “abortifacients.”[16] Specifically, the petitioners at trial challenged the ACA requirement that corporations fund insurance coverage of two types of morning-after pills and two forms of intrauterine devices[17] because, Hobby Lobby claimed, those forms of contraception prevent an embryo from implanting into the uterine wall, thus acting in an Christian-denounced, abortive manner.[18]

The Temple’s claim that since the Supreme Court wrongly accepted Hobby Lobby’s characterization of the four contraceptives as abortifacients in its decision, [19] the Court demonstrated that “religious beliefs are so sacrosanct that they can even trump scientific fact.”[20] The Temple argues that their followers are, therefore, exempt from having to receive State informed consent materials because the Court has granted religious deference over scientifically accurate, or even inaccurate, materials.[21] Thus, the Temple’s scientifically-based belief that the State materials are inaccurate and contradictory to the Temple’s religious beliefs should control, permitting refusal over a State’s mandate.[22]

While the Hobby Lobby Court expressly stated that its decision was specific to that case and would not permit for-profit corporations, for example, to forego other legal requirements in the name of corporate-expressed religion,[23] at least one reporter has described the Temple’s position as being “the polar opposite” of Christians.[24] Since the common-denominator in both Hobby Lobby and the Temple’s claims are the Christian-supported Pro-Life views versus the Temple’s Pro-Choice views, it makes sense to proceed under that characterization of the issue while examining the Temple’s claimed religious beliefs surrounding the topic of abortion.[25]

III. Qualifying as a Religious Belief

The Hobby Lobby Court said that: “[T]he exercise of religion involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons.”[26] The Temple is seeking to abstain from the physical act of receiving[27] State-issued materials for religious reasons.[28] At least one law professor has argued (prior to the Hobby Lobby decision) that to deny challenges to abortion-related laws that are brought under RFRA’s protection would violate the Establishment Clause of the First Amendment because of the favoritism it would show to one religion over another.[29] This would seem to be true, since the Hobby Lobby Court looked to the amendment of RFRA, as seen through Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA),[30] that expanded protection of religious freedom such that the “exercise of religion ‘shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by terms of this chapter and the Constitution.'”[31] Therefore, a RFRA challenge would enjoy a broad umbrella under which the proponent might classify their objection as being tied to religion.

The challenge then will be demonstrating that the Temple, which reportedly only has twenty active members connected by the Temple’s email listserv, actually does hold religious-based beliefs and not beliefs based solely on politics.[32] The Temple’s beliefs have been described as a “mystery” to those outside its circle,[33] but RFRA legal expert Marci A. Hamilton has stated that “[t]hese beliefs were not concocted recently, and there is no evidence of hypocrisy.”[34] Yet, the Temple’s spokesperson, Lucien Greaves, has been quoted as saying that he thinks Satanic worship is “silly.”[35] Greaves has even been questioned in an interview as to whether the Temple was really a satirical group instead of a Satanic Temple, to which Greaves responded, “I say why can’t it be both?”[36] Nonetheless, Greaves does believe that the Temple’s political beliefs are inseparable from its religious beliefs.[37] The Temple’s website states that: “As an organized religion, we feel it is our function to actively provide outreach, to lead by example, and to participate in public affairs wheresoever the issues might benefit from rational, Satanic insights.”[38]

But a mixture of political and religious belief may not matter. The Hobby Lobby decision held that the protection of RFRA was not limited to a corporation based on whether it was non-profit or for-profit.[39] In fact, the Court stated that “organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.”[40] As the Court reminded the reader: “A corporation is simply a form of organization used by human beings to achieve desired ends.”[41]

If a religious organizations can maintain RFRA protection while incorporating so as to engage in political and social lobbying activities, the Temple should receive equal protection under RFRA because it is also a religious organization engaging in political and social lobbying activities. It would not be fair to say that the Temple loses its identity as a religious organization or is less than sincere in its beliefs simply because it engages in political and social debate. Were that the case, the Catholic Church would equally lose its identity and legally-recognized sincerity of belief due to the Church’s media statements and involvement in political issues and governmental action, which have included the issue of abortion.[42] The question the Temple (and the woman who has standing to file the claim and argue that her beliefs have been violated) will need to answer in court is whether their respective beliefs are actually sincerely-held beliefs that are tenets of their faith.[43]

IV. Individually Held Belief

Questions have been raised through media discussion of the Temple’s press release about the sincerity of the individual bringing the lawsuit, specifically whether a woman could join the Temple for the purpose of using the Political Information Opt-Out letter and filing a lawsuit.[44] But, under the Hobby Lobby analogy, the question of sincerity appears to belong to that of the religious organization, and not that of the actual individual.[45] As critics and analysts of Hobby Lobby’s position have pointed out: “There were and are many reasons to question the sincerity of the [Hobby Lobby owners], who covered contraception before the Affordable Care Act mandated it and whose company is heavily invested in companies that make the contraceptives to which they object. . . .”[46]

In cases that have examined the sincerely-held beliefs of the actual individual, the individual was seeking and was granted First Amendment protection for religiously-based practices that were not attributable to the doctrine of the religion to which the individual followed but were personal practices that the individual related to their religious beliefs.[47] The Court instead looked at the sincerity of belief by the plaintiff.[48] The conclusion to be drawn, then, is that the Supreme Court will grant protection to sincerely-held religious beliefs whether they are attributed directly to the individual claiming the beliefs or to the religion to which the beliefs at issue are tied.

V. Sincerity of Belief

The court would have to look at the “religiously-based” objection to determine if it is based on a sincerely-held religious belief and not a secular belief; however, the problem with challenging the Temple’s beliefs as being actually “religious” is that it is impermissible under the First Amendment for a court of law to make such a determination.[49] That is because the Supreme Court stated decades earlier that the question of the “truth or verity of [the proclaimer’s] religious doctrines or beliefs” should not be submitted to fact-finding.[50] The reason being that the First Amendment is based on two separate theories of religious freedom—the right to believe and the right to act in accordance with belief.[51] In making that distinction, the Supreme Court stated that: “Freedom of thought, which includes freedom of religious belief . . . embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.”[52]

This ban on judicial findings of sincerity of religious tenets should also impact the third element of an RFRA challenge—a showing that the challenged law places a substantial burden on the religious challenger.[53] While the Hobby Lobby Court did evaluate the financial burden on the corporations for non-compliance with the ACA mandate of providing the challenged health-care coverage,[54] the burden that would be argued by the Temple would not be financially or business-related—the burden is related to the direct imposition of politically-biased medical decisions (such as the decision to have an ultrasound or to revisit family-planning alternatives) on the individual by the government.[55] That burden is directly placed on the private choice of the individual which is based on that individual’s religious belief (their right to believe), unlike Hobby Lobby whose religiously based decision was not burdened, just the consequences of that decision (their right to act based on belief).[56]

VI. Conclusion

While Christians and the world may cringe, the Temple has nonetheless presented a religiously-based objection to the imposition of government mandated pre-abortion requirements, and thanks to broad interpretation of RFRA by the Hobby Lobby Court, the Temple may now have the teeth to fight. Anything less than fair consideration of a religious argument would violate the Establishment Clause, and a court’s consideration as to whether the Temple truly has objections that are religiously based would require analysis of the Temple’s religious doctrine that could equally violate the First Amendment. Thus, a challenge could legitimately be brought, and all that remains now is time until the trial begins.

[1] Ruth 1:16.

[2] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2762 (2014) (alteration in original); 77 Fed. Reg. 8724, 8725 (Feb. 15, 2012) (codified at 45 C.F.R. pt. 147); see also Health Resources & Services Administration, Women’s Preventative Services Guidelines, U.S. Dep’t of Health & Human Servs., http://www.hrsa.gov/womensguidelines (last visited Nov. 30, 2014).

[3] Pub. L. No. 103-141, 107 Stat. 1488 (1993).

[4] Hobby Lobby, 134 S. Ct. at 2759.

[5] Press Release, The Satanic Temple, Satanists Leverages Hobby Lobby Ruling to Claim Exemption From State-Mandated Pro-Life Materials as First Initiative in Ambitious Women’s Health Campaign (July 28, 2014) (on file with author) [hereinafter Press Release].

[6] Meghan Keneally, Satanists Use Hobby Lobby Decision to Play Devil’s Advocate, ABC News (July 30, 2014, 12:34 PM), http://abcnews.go.com/Politics/satanists-hobby-lobby-decision-play-devils-advocate/story?id=24772548.

[7] Guttmacher Inst., State Policies in Belief, Counseling and Waiting Periods for Abortion 1, 3 (2014).

[8] The legal definition of “informed consent” is: “A patient’s knowing choice about a medical treatment or procedure, made after a physician or other healthcare provider discloses whatever information a reasonably prudent provider in the medical community would give to a patient regarding the risks involved in the proposed treatment or procedure.” Black’s Law Dictionary 149 (4th Pocket ed. 2011).

[9] Press Release, supra note 5. As an example of political bias — on September 10, 2014, Missouri passed an amendment to its abortion-related law, expanding the state’s waiting period from twenty-four hours to seventy-two hours and requiring women to undergo an ultrasound before a woman can receive an abortion. David A. Lieb, Missouri Lawmakers Enacts 72-Hour Abortion Wait, Associated Press (Sept. 11, 2014, 1:01 AM), http://bigstory.ap.org/article/missouri-lawmakers-enact-72-hour-abortion-wait. The purpose of the expanded time-frame is to provide women with a “reflection period,” in the hopes that the woman will change her mind. Id. This extended reflective period will also be enforced on women who are victims of rape and incest. Id. A prayer vigil was held prior to the legislators convening that day, seeking God’s provision of courage to the lawmakers to pass the bill. Id. On the other hand, and in a truly ironic turn of events of which the Temple would probably approve, the photograph that accompanies this story in the media shows a group of pro-choice protestors standing under a portion of the capital building’s ceiling which reads: “opinion should be enlightened.” See id.

[10] The information is considered biased because the materials favor non-abortive alternatives and do not equally discuss the benefits of electing to undergo an abortion. See Terry Nicole Steinberg, Note, Abortion Counseling: To Benefit Maternal Health, 15 Am. J.L. & Med. 483, 501 (1989) (“Unbiased content would include not only [“risks of abortion” and the “benefits of continuing the pregnancy”], but also the negative aspects of birth and adoption and the positive aspects of abortion.”).

[11] See, e.g., Guttmacher Inst., supra note 7; Waiting Periods and Counseling Requirements, Nat’l Women’s Law Ctr., http://hrc.nwlc.org/policy-indicators/waiting-periods-and-counseling-requirements (last visited Sept. 13, 2014); Mandatory Delays and Biased Counseling for Women Seeking Abortions, Ctr. for Reproductive Rights (Sept. 30, 2010), http://reproductiverights.org/en/project/mandatory-delays-and-biased-counseling-for-women-seeking-abortions. See also Steinberg, supra note 10 at 485 (stating that “inadequate or inaccurate counseling harms women, increasing the risk of post-abortion trauma”); Ashley Portero, Abortion Waiting Periods, Counseling Do Not Sway Women: Study, Int’l Bus. Times (May 9, 2012, 5:58 PM), http://www.ibtimes.com/abortion-waiting-periods-counseling-do-not-sway-women-study-697688; Tara Culp-Ressler, Study: Abortion Waiting Periods Cause “Excessive” Emotional and Financial Hardships for Women, Think Progress (Mar. 6, 2013, 3:00 PM), http://thinkprogress.org/health/2013/03/06/1682671/abortion-waiting-excessive-hardships .

[12] Press Release, supra note 5 (internal quotations removed); Right to Accurate Medical Info — Letter to Doctor 1, available at http://thesatanictemple.com/campaigns/medical-info (follow “Right to Accurate Medical Info — Letter to Doctor” hyperlink) (last visited Jan 20, 2015) [hereinafter Letter].

[13] Press Release, supra note 5; Letter, supra note 12, at 1.

[14] “We should only have to review medical or scientific information based solely on fact and not politicized. Some of that state-drafted information is medical in nature [but] it’s just written in a very biased format.” Keneally, supra note 6 (quoting Jex Blackmore, Head of the Detroit chapter of The Satanic Temple) (alteration in original).

[15] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014); Press Release, supra note 5.

[16] Press Release, supra note 5; 134 S. Ct. at 2759.

[17] The parties did not object to the “other 16 FDA-approved methods of birth control.” Hobby Lobby, 134 S. Ct. at 2765, 2766. As a point of interest — Catholics, unlike all other Christian sects, still object to all forms of contraception based on tenets of doctrinal belief. Birth Control, Catholic Answers, http://www.catholic.com/tracts/birth-control (last visited Dec. 1, 2014); Church Teaching on Contraceptives, ChurchAuthorities.org, http://www.churchauthority.org/living/contraception.asp (last visited Dec. 1, 2014).

[18] Hobby Lobby, 134 S. Ct. at 2762-63, 2764-65, 2766. Simply as a point for intellectual debate, some states would seemingly support the Temple’s statement that these forms of contraception are not abortifacients based on the respective states’ Probate Laws which find that an embryo having been created through in vitro fertilization is not yet “conceived” until the embryo has been implanted into the mother’s womb. See, e.g., Finley v. Commissioner, Soc. Sec. Admin., 270 S.W.3d 849, 850, 854–55 (Ark. 2008) (declining to expressly define the term “conceived,” but deciding that an embryo created during the life of the decedent yet later implanted in the mother’s womb after the death of her decedent spouse did not meet the definition of posthumously conceived.) Having not been “conceived” within the meaning of the law, those forms of contraception therefore do not “abort” a pregnancy, and as such, cannot fairly be labeled “abortifacients.”

[19] Intrauterine devices are not abortifacients. Intrauterine Devices (IUDs), Merck Manuals, http://www.merckmanuals.com/professional/gynecology_and_obstetrics/family_planning/intrauterine_devices_iuds.html?qt=abortifacients&alt=sh (last modified Aug. 2013). A copper IUD can be used as an emergency contraceptive, which might disrupt implantation; however, findings seem to indicate that an already established pregnancy will not be affected. Emergency Contraception, Merck Manuals, http://www.merckmanuals.com/professional/gynecology_and_obstetrics/family_planning/emergency_contraception_ec.html (last modified Aug. 2013). Similarly, oral contraceptives work by introducing hormones that either prevent ovulation or cause a thickening of the cervical mucus which prevents sperm from being able to pass through the cervical canal and endometrial cavity so as to reach the egg and fertilize it. Oral Contraceptives, Merck Manuals, http://www.merckmanuals.com/professional/gynecology_and_obstetrics/family_planning/oral_contraceptives.html (last modified Aug. 2013). An egg is never fertilized, and thereby a fertilized egg is never aborted. See id. Oral contraceptives that are used as emergency contraception, which are the forms opposed by Hobby Lobby, work by delaying ovulation, avoiding fertilization by preventing an egg being exposed to sperm. Emergency Contraception, Merck Manuals, http://www.merckmanuals.com/professional/gynecology_and_obstetrics/family_planning/emergency_contraception_ec.html (last updated Aug. 2013).

[20] Press Release, supra note 5.

[21] Id.

[22] Id.

[23]Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014).

[24] Keneally, supra note 6.

[25] Id.

[26] Hobby Lobby, 134 S. Ct. at 2770 (explaining why corporations, as persons, can exercise a religion; quoting Employment Div. Dep’t of Human Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990)) (internal quotations omitted).

[27] One law professor has argued that the Temple’s argument is flawed because the “Informed Consent” laws place legal obligations on the medical provider to supply the woman with the state-issued materials; the laws do not place a legal obligation on the woman to read the materials. Emma Green, Satanists Troll Hobby Lobby, The Atlantic (July 30, 2014, 12:01 AM ET), http://www.theatlantic.com/politics/archive/2014/07/satanists-troll-the-hobby-lobby-decision/375268. However, the crux of the Temple’s argument seems to be that, due to the Temple’s religiously-based belief that an individual must make health-related decisions based upon “the best scientific understanding of the world,” a State is interfering with a believer’s ability to make an informed decision and find “the best scientific understanding” when the State forces inaccurate or biased information on the believer under the representation that the information is scientific accurate and politically (and religiously) unbiased. See Letter, supra note 12, at 1–2. In other words, the fact that the State is mandating a medical provider to act as the State’s proxy is immaterial.

[28] Press Release, supra note 5; Letter, supra note 12.

[29] Irin Carmon, Satanists Aren’t the Only Ones Following Hobby Lobby’s Lead, MSNBC (July 29, 2014, 9:32 PM), http://www.msnbc.com/msnbc/satanists-hobby-lobby-when-religious-exemptions-are-prochoice (quoting Yale Law School professor Pricilla Smith).

[30] 42 U.S.C.S. § 2000cc et seq.

[31] Hobby Lobby, 134 S. Ct. at 2772; see also 42 U.S.C.S. § 2000bb-2(4).

[32] Green, supra note 27. The natural fear tied to this argument is that political parties and opinion would then be permissible if it were cloaked under the auspices of a “religious organization.”

[33] Keneally, supra note 6.

[34] Marci A. Hamilton, The Circle States to Close: The Religious Freedom Restoration Act, Abortion, Catholic Bishops, and the Satanic Circle, The Verdict (Aug. 7, 2014), http://verdict.justia.com/2014/08/07/circle-starts-close.

[35] Green, supra note 27.

[36] Debra Cassens Weiss, Satanists Assert a Hobby Lobby Exemption from Abortion Informed-Consent Laws, A.B.A. J. (July 29, 2014, 5:18 PM), http://www.abajournal.com/news/article/satanists_assert_a_hobby_lobby_exemption_from_abortion_informed-consent_law.

[37] Green, supra note 27.

[38] Our Mission, TheSatanticTemple.com, http://thesatanictemple.com/about-us/our-mission/ (last visited Dec. 2, 2014); see also Cassens Weiss, supra note 36.

[39] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2771 (2014). “[Congress] included corporations within RFRA’s definition of ‘persons.'” Id. at 2768.

[40] Id. at 2771.

[41] Id. at 2768.

[42] See, e.g., Stefano Gennarini, Vatican Turns the Table on the UN: It’s Abortion that’s Torture, Not Our Pro-Life Views, LifeNews.com (May 9, 2014, 9:27 AM), http://www.lifenews.com/2014/05/09/vatican-turns-the-table-on-the-un-its-abortion-thats-torture-not-our-pro-life-views (reporting on the presence of Vatican delegates at the United Nations in Geneva to debate whether abortion constitutes “torture”); Associated Press, Vatican Criticizes Obama on Abortion Issue, TimesNews.net (Jan. 24, 2009, 12:00 AM), http://www.timesnews.net/article/9011291/vatican-criticizes-obama-on-abortion-issue (reporting on Vatican criticism of President Obama for lifting a ban on federal funding of international organizations that provide abortions); Carmon, supra note 29 (stating that RFRA was embraced by the United States Conference of Catholic Bishops, who had originally spoken out against RFRA because the Bishops feared RFRA would open the door to abortion law challenges).

[43] The first element — is the Temple a protected party under the RFRA — will likely be met because it is a religious organization. Hamilton, supra note 34.   The question would then turn on the second issue — is the Temple sincere in its beliefs. Id.

[44] Green, supra note 27 (quoting University of Cornell University Law School Dean Eduardo Peñalver).

[45] See Hamilton, supra note 34.

[46] Id.

[47] See, e.g., Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 715-16 (1981) (“Intrafaith differences. . . [1431]  are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses. . . . [T]he guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.”); Frazee v. Ill. Emp’t Sec. Dep’t., 489 U.S. 829, 834 (1989) (rejecting the argument that “one must be responding to the commands of a particular religious organization in order to receive First Amendment protection,” focusing instead on sincerity of belief).

[48] Frazee, 489 U.S. at 833.

[49] United States v. Ballard, 322 U.S. 78, 87 (1944) (stating that triers of fact “enter a forbidden domain” when they attempt to subject doctrines of any faith to trial for veracity).

[50] Id. at 86.

[51] Id.

[52] Id.

[53] Pricilla Smith, Whose Faith Does RFRA Protect? Everyone’s, No One’s, or Not Mine?, Balkinization (Mar. 24, 2014), http://balkin.blogspot.com/2014/03/whose-faith-does-rfra-protect-everyones.html.

[54] 134 S. Ct. 2751, 2770 (2014).

[55] See Keneally, supra note 6 (quoting Hamilton as saying that the Temple’s argument “is following exactly on that line of thinking that a regulation that impedes the ability of the believer to practice that religion is going to be challenged.”).

[56] Hamilton described Hobby Lobby’s burden as being “attenuated,” saying: “In other words, the burden arose from their fungible funds entering a stream of fungible healthcare funds and then being used by some of their female employees in ways they will never know.” Hamilton, supra note 34.

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