A Day to Reflect
Independence Day provides a great opportunity not only to light fireworks and the grill, but also to reflect on our country’s freedoms and values. The First Amendment has been front and center as of late. Our bedrock democratic values of political discourse, free speech, and religious expression have contributed incredibly and uniquely to the shaping of our pluralistic nation. They also strongly and increasingly influence laws affecting nonprofit organizations.
The U.S. Supreme Court’s 2013-2014 term recently ended. Near the end of the term, the Court issued a flurry of decisions affecting speech and religious liberty rights. The Supreme Court’s decisions amply demonstrate the critical importance of First Amendment values, as well as their significant tensions.
Hobby Lobby: First Amendment Rights for Closely Held Corps.
1. Burwell v. Hobby Lobby Stores. This case involved for-profit companies whose owners objected to the federal government’s requirement that they pay for abortifacient contraceptives offered through employee health insurance. The companies’ objections were based on their sincerely held religious beliefs that human life begins at conception. The Court applied the Religious Freedom Restoration Act (RFRA), which was passed in 1993 with broad bipartisan approach and signed by then-President Clinton, to uphold their religion-based claims. In doing so, the Court recognized that RFRA was intentionally designed to “provide very broad protection for religious liberty,” beyond even what is required under the First Amendment.
Applying RFRA, the Court initially determined that RFRA’s protections apply to closely-held corporations as “persons,” since they are run by people with protectable religious beliefs. The Court next applied RFRA’s analytical framework:
· The Court determined that the HHS contraceptive mandate “substantially burdens” religious exercise, given the high financial cost of noncompliance.
· The Court assumed that the government’s interest regarding women’s access to such contraception was sufficiently “compelling.” However, the Court ruled that the government had not utilized the “least restrictive means” to achieve its desired goal.
· The Court noted that the government had already developed alternative means for churches, religious nonprofits, and other grandfathered plans. The Court concluded that these same alternatives could be made available to closely-held corporations as a way to “achieve all of the Government’s aims without substantially burdening the religious freedom of the corporations’ owners.
What does this case mean for nonprofits? First, consistent with other Supreme Court precedent (most notably Citizens United), nonprofit corporations are “persons” for purposes of First Amendment protections such as accorded through RFRA. Accordingly, nonprofit themselves can enjoy greater assurance of free speech, freedom of assembly, freedom of expression, and religious freedom rights. Second, the next battleground will likely continue to heat up for religious nonprofits that object to the government-proffered accommodations regarding cost-free abortifacient contraceptives provided through employer health insurance, on religious and moral grounds similar to those raised in the Hobby Lobby case. Third, the case serves as a warning: four Justices – one vote shy of a majority - were willing to constrain religious liberties in favor of what the government deems best, instead concluding that “the connection between the [owners’] religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.”
Other Important Cases:
2. McCullen v. Coakley. The Supreme Court unanimously struck down a “buffer zone” law in the Commonwealth of Massachusetts that made it illegal to approach people close to a health care facility where abortions are performed. The Court first recognized the special First Amendment protection generally accorded to public ways and sidewalks held “in trust.” Such protection stems from their “historic role as sites for discussion and debate.” Emphasizing the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,” the Court next analyzed whether the restrictive statute was sufficiently “narrowly tailored to serve a significant governmental interest.” In other words, a close fit between the ends and means was required. The Court then found that the buffer zones imposed serious burdens on speech, “substantially more speech than necessary to achieve the Commonwealth’s asserted governmental interests.” Thus, the Court again favored “vital First Amendment interests at stake” over governmental assertions of countervailing – and legally insufficient – interests.
3. Harris v. Quinn. The Supreme Court struck down an Illinois law affecting home health-care workers. The law required workers to make payments to unions they did not want to join or support. The payments were used to subsidize speech on matters of public concern. The workers were not in agreement with the viewpoints advocated by the union. The Court analyzed such mandatory payments under the First Amendment, concluding that they infringed protected speech rights. As the Court concluded, “except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
4. McCutcheon v. Federal Election Commission. In a narrow but strong affirmation of First Amendment political speech freedoms, the Court struck down aggregate campaign contributions limits. The decision upheld the primary importance of keeping political speech as unrestricted as possible. As Justice Roberts wrote, there is “no right more basic in our democracy than the right to participate in electing our political leaders.” Further, political speech is to be encouraged, not limited: “The First Amendment is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us.” Bottom line: Under the First Amendment, a court must err on the side of political speech - not suppressing it.