We already know that 2014 was a big year for religious exemption cases, from the gravely serious to the immensely trivial. But what will 2015 have in store? If I were a prophet I could, of course, predict the future. But let’s just call these my top three educated guesses for the kinds of religious exemption cases we’re going to see in 2015.
1. Contraception: Total Exemption
First and foremost, we’re going to see continuing litigation over the Affordable Care Act’s contraceptive coverage requirement and the accommodation process already in place. There are some plaintiffs, both for-profit and non-profit, who will object to any accommodation at all and claim a right to a total exemption from the law; i.e., they don’t want anyone to give their employees birth control coverage in any manner that is related to their employment.
That is, if the government just wanted to give every woman in America a free-standing statutory right to contraceptive insurance coverage that would be paid for and administered by the government and would not involve your employer in any way, even as a vehicle, that might be ok with them. Maybe.
Ultimately the Supreme Court is probably going to have to consider the question of whether RFRA provides a complete exemption for those who object to any accommodation process.
2. Marriage Equality: Public Officials
2015 is also likely to be the year of suits claiming religious exemptions from participating in gay marriage solemnizations or celebrations. We’re already familiar with the example of service providers—like bakers or florists—who refuse to work with gay couples on their marriage ceremonies or parties.
But heading into 2015, as more and more states have marriage equality implemented to conform with federal court rulings, we’re likely to see a renewed effort to allow public officials to claim a religious exemption from performing gay marriages. These could take the form of lawsuits under state RFRAs, or could be legislated directly into effect, as was the case with a recent proposed bill in North Carolina.
3. Corporate Rights: Size Matters
Hobby Lobby involved a claim by a family-owned and family-operated for-profit corporation with a limited number of shareholders, all of whom shared a set of religious beliefs and values. And the majority opinion in the case was careful to assure readers that there was no reason to think that larger for-profit corporations would bring similar suits.
The only problem is, there’s no reason to think that they won’t. Imagine a publicly-owned religious products company for instance—or even just a privately-held one that has a larger and more diverse group of shareholders than were at issue in Hobby Lobby. Plenty of large corporations, even publicly-held corporations, operate in markets where discriminatory policies or actions might actually help their bottom line.
So in 2015 I suspect we’re going to see litigation fleshing out just what kinds of for-profit entities are eligible for exemptions under the federal RFRA or similar state laws, and whether Hobby Lobby provides any principled way to draw the line on size.
