On Tuesday morning, the Supreme Court announced that it would hear a pair of religious freedom cases: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. The question is whether for-profit corporations may deny contraceptive coverage to their employees—coverage that the Affordable Care Act requires—based on their owners’ religious objections. As court-watchers have been predicting for months, the case will prove to be an unholy alliance of corporate personhood doctrine, religious freedom claims, and abortion rights. What, I ask, could possibly go wrong?
The court agreed to hear an appeal from the 10th U.S. Circuit Court of Appeals, which sided with Hobby Lobby, an Oklahoma-based chain of craft stores owned by a Christian family who claimed that the birth-control mandate violated their company’s religious freedom. The court also agreed to hear an appeal from the 3rd U.S. Circuit Court of Appeals, which went the opposite way, finding that Conestoga Wood Specialties Corp., a cabinet manufacturer, did not have the same religious conscience rights as an individual. The split between these two circuit courts and other appeals courts, plus almost 50 other cases in the pipeline, meant that the Supreme Court was almost forced to weigh in.
The case raises critically important questions under both the religious freedom clauses of the First Amendment and a 1993 law called the Religious Freedom Restoration Act. RFRA was passed, as David Savage explains here, in response to a 1990 Supreme Court decision holding that neutral, generally applicable laws, if they only incidentally burden religious practice, may stand if the government has a rational basis for passing them (the lowest bar for courts to impose). RFRA effectively reinstated strict scrutiny—a higher standard for the government to meet—for laws that substantially burden religious exercise.
But do corporations have a right to religious freedom? Can they truly count as “persons” for getting the protections promised by RFRA? That’s the word the law uses, and these claims are novel, to say the very least. Since the Affordable Care Act was passed, various Christian employers have challenged the birth-control mandate under RFRA, claiming that providing certain specified "abortion causing" drugs (this is their scientifically contested claim about the effects of the morning-after pill) violates their most deeply held religious convictions. Exemptions to the contraception mandate in Obamacare already exist for explicitly religious organizations and various other employers but not for the type of for-profit corporations at issue in the two cases the Supreme Court has agreed to hear. The Obama administration also changed the birth-control requirement to allow certain nonprofits to opt out of paying for insurance directly and pass the costs on to their insurance provider. But again, that doesn’t apply to the big for-profit companies like Hobby Lobby and Conestoga Wood.
The court will need to address several questions here, beginning with whether a for-profit corporation can be a “person” capable of exercising religion freedom. Citizens United taught us that corporations count as people when it comes to campaign speech. Does this weird concept of personhood extend to their religious rights? The 10th Circuit said yes. The 3rd Circuit said no. More questions: Does the birth-control coverage benefit substantially burden a company’s exercise of its religious rights, if it has them? Is the contraception mandate nevertheless justified by compelling government interests because it is a vitally important element of affording women equality in health care?
The clash over requiring health insurance that covers contraception is frequently styled as both a debate over whether religious employers can force their religious beliefs upon their employees and a set of slippery-slope problems that can’t be ignored. It raises questions about whose religious beliefs are deeply felt and whether employers who are, say, Jehovah’s Witnesses might withhold access to other forms of health care for their workers. In a deep way the case raises the possibility of a world in which—as Judge Ilana Diamond Rovner explained in her dissent from another appellate ruling striking down the contraception mandate—the Framers’ profound concern about government dictating how people should worship is deployed to allow for-profit corporations to do the same. In a deep way the case will also pit the Justice Antonin Scalia who didn’t have much solicitude for peyote smokers in a case about their religious freedom against the Scalia who might have more patience for the religious freedom of devout Christians. And as we say in the business, this may all come down to what Justice Anthony Kennedy thinks about religious liberty, or—in an echo of the 2012 broad challenge to the Affordable Care Act—whether Chief Justice John Roberts can see beyond hating on Obamacare to broader constitutional values.
This is definitely not going to be a pretty one. But nobody expected that it would be.
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