Attorney Dan Krisch ()
I’m 0 for 2. Earlier this year, I wrote of my fear that the U.S. Supreme Court would permit the warrantless search of arrestees’ cell phones and my hope that the court would reject a company’s faith-based challenge to the contraceptive mandate of the Affordable Care Act. As it happens, I feared for naught, but hoped in vain: With the court’s recent decisions in Riley v. California and Burwell v. Hobby Lobby, both the secrets in our iPhones and the religious beliefs of our corporations are sacrosanct.
In June, the 18th-century British naturalist Gilbert White observed, “the tortoise grows elate and walks on the tips of his toes.” So, too, do the Nine Wise Souls in Washington. The court typically decides its most controversial cases after Memorial Day and the justices seem to hoard their zest for battle and their sharpest rhetoric for those oft-bitterly divided opinions.
Not so Riley, a unanimous decision—Justice Samuel Alito penned a short concurrence—in spite of its controversial subject. Riley holds that the police may not search digital information on an arrestee’s cell phone without a warrant and rejects exigency and officer safety as justifications for a warrantless search. When I read Riley, I half-expected to see Earl Warren’s name at the beginning of the opinion instead of John Roberts’: An opinion that protects privacy and expands the rights of defendants at the clear expense of effective police work and no scathing dissent, no 5-4 divide with Justice Anthony Kennedy in his usual place on the tipping point!
Mind you, Riley is not, to borrow a phrase from former Connecticut Supreme Court Justice Leo Parskey, a Fourth Amendment “appellate Champs-Elysees.” It does not prevent the government from searching an arrestee’s cell phone, only from doing so without a warrant. Not a tall order: In most cases, probable cause for an arrest likely presupposes probable cause for a search. And Riley places no new limitation on the government’s power to search cell phones in general. Nonetheless, it is meaningful to have the court remind us, in one voice, that the warrant requirement is “an important working part of our machinery of government, not merely an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.”
However, Riley was an anomaly among the late June blossoms—a rare moment of concord on an otherwise bitterly-divided Court. Two of its other major decisions, on recess appointments and buffer zones around abortion clinics, were UINOs (Unanimous In Name Only). A five-member majority circumscribed the president’s power to do the former (with Kennedy the swing vote) and held that the latter violates the free speech rights of abortion opponents (with Roberts the swing vote). Justice Anton Scalia penned a dissent in concurrence’s clothing in each—garnering three other votes on recess appointments, but only two on buffer zones.
No UINOs were seen on the June’s last day, though, when the court handed down its 5-4 ruling in Hobby Lobby. Pay attention, all you penny-pinching CEOs: Find God and you can cut your health insurance costs! Sarcasm and the odd spectacle of five male justices limiting women’s access to health care aside, Hobby Lobby is a Pandora’s Box of potentially unlimited mischief. And with the lid pried open, litigants will crowd into Hobby Lobby by the bucketful.
The decision announces the right of for-profit companies, under the Religious Freedom Restoration Act (RFRA), to avoid laws of general applicability if those laws “substantially burden” their “exercise of religion.” However, RFRA applies only to government actions that “substantially burden a person’s exercise of religion.” In other contexts, it may make sense to include corporations as persons, but not in this one. People exercise religion; it is a uniquely human act. No matter how sincere the beliefs of its owners, they do not pass on self-awareness and a soul to their corporate creation. Even for a closely-held company—ostensibly the only class to which Hobby Lobby applies—that idea requires a … giant leap of faith, I guess?
Metaphysical absurdity aside, the potential scope of Hobby Lobby is staggering. Does RFRA, for example, give a company founded by religious pacifists the right to refuse to hire anyone who has served in the military? Or a company founded by Christian Scientists the right to refuse to pay for insurance that covers employee vaccinations? Or take Hobby Lobby Stores itself: As a company run “in a manner consistent with Biblical principles,” could Hobby Lobby:
• Fire any female employee whose husband did not give her permission to work? (“Wives, submit yourselves unto your own husbands, as unto the Lord.” Ephesians 5:22)
• Use slave labor? (“Slaves, obey your earthly masters with respect and fear, and with sincerity of heart, just as you would obey Christ.” Ephesians 6:5)
• Refuse to honor United States currency as legal tender? (“For the love of money is the root of all evil.” 1 Timothy 6:10)
Preposterous? Perhaps. But in Hobby Lobby-land, I fear all bets are off.•