Remember the big dustup last summer over the contraception mandate in President Obama’s health reform initiative? It required companies with more than 50 employees to provide insurance, including for contraception, as part of their employees’ health care plans. The constitutional question was whether employers with religious objections to providing coverage for birth control could be forced to do so under the new law. The Obama administration tweaked the rules a few times to try to accommodate religious employers, first exempting some religious institutions—churches and ministries were always exempt—and then allowing companies that self-insure to use a separate insurance plan to pay and provide for the contraception. Still, religious employers objected, and lawsuits were filed, all 60 of them.
A year later, the courts have begun to weigh in, and the answer has slowly begun to emerge: maybe yes, maybe no. It all depends on whether corporations—which already enjoy significant free-speech rights—can also invoke religious freedom rights enshrined in the First Amendment.
Last Friday, the 3rd U.S. Circuit Court of Appeals upheld the contraception mandate, rejecting a challenge from a Pennsylvania-based cabinetmaker who claimed that as a Mennonite he should not be compelled to provide contraceptive coverage to his 950 employees because the mandate violates the company’s rights under the free exercise clause of the First Amendment and the Religious Freedom Restoration Act. The owner considers some of the contraception methods at issue—specifically, the morning-after and week-after pills—abortifacients.
The appeals court looked carefully to the precedent created by Citizens United—the 2010 case affording corporations free-speech rights when it came to election-related speech—to determine whether corporations also enjoy constitutionally protected religious freedom. Writing for the two judges in the majority, Judge Robert Cowen found that although there was “a long history of protecting corporations’ rights to free speech,” there was no similar history of protection for the free exercise of religion. “We simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion,” he concluded. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”
Cowen also flagged the absolute novelty of the claims, noting that there was almost no case law suggesting that corporations can hold religious beliefs. “We are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.” Finally he took pains to distinguish the corporation, Conestoga, from its legal owners. “Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. … It is Conestoga that must provide the funds to comply with the Mandate—not the Hahns.”
Judge Kent Jordan, dissenting at length in the case, said that for-profit, secular corporations can surely avail themselves of the protections of the religion clauses. “To recognize that religious convictions are a matter of individual experience cannot and does not refute the collective character of much religious belief and observance ... Religious opinions and faith are in this respect akin to political opinions and passions, which are held and exercised both individually and collectively.”
The 3rd Circuit decision creates a significant split between the appeals courts, because a few short weeks earlier, the Colorado-based 10th U.S. Circuit Court of Appeals ruled in favor of Hobby Lobby Stores Inc., finding by a 5–3 margin that corporations can be persons entitled to assert religious rights. Hobby Lobby is a chain of crafts supply stores located in 41 states. The 10th Circuit upheld an injunction blocking the contraception requirement because it offended the company owners’ religious beliefs. The majority in the 3rd Circuit wrote that it "respectfully disagrees" with the 10th Circuit. A split of this nature makes Supreme Court review almost inevitable.