The Supreme Court has just granted certriorari in two cases that raised religious challenges to the contraception coverage requirement under the Affordable Care Act.
The Court will hear the challenges from Hobby Lobby, the arts and crafts chain owned by evangelicals, and Conestoga Wood Specialties, a small family-run business in Pennsylvania that is owned by Mennonites. Both object only to certain forms of contraception they (erroneously) say are abortifacients, including ella, Plan B, and the copper IUD.
As I reported in July:
At issue in Hobby Lobby’s lawsuit is far more than whether its employees will have coverage for all 20 methods of birth control Department of Health and Human Services regulations require employers to cover free of co-pays and deductibles. The suit, and others like it, is asking the courts to recognize for-profit corporations as entities with religious consciences that can be, in the legal parlance of RFRA, “substantially burdened” by government regulations.
The burden, Hobby Lobby argued, and the Tenth Circuit agreed, is that the government will impose fines of $100 per employee per day for failing to comply with the coverage requirement, potentially totaling $475 million in fines per year. That, the court found, amounted to a “Hobson’s choice,” forcing Hobby Lobby to choose between “catastrophic fines or violating its religious beliefs.”[Hobby Lobby counsel Kyle] Duncan maintained that the notion of a corporation having religious-freedom rights was “not a novel proposition,” but admitted there were no cases “squarely on point.” The vociferous dissents in Tenth Circuit’s 168-page opinion point to the conflicting legal theories that in all likelihood will be sorted out by the Supreme Court. The Tenth Circuit’s chief judge, Mary Beck Briscoe, excoriated the majority for finding that the operation of a successful for-profit corporation could be seen as a “form of evangelism,” effectively deeming them “faith-based businesses” entitled to free-exercise rights. That, Briscoe contended, “is nothing short of a radical revision of First Amendment law, as well as the law of corporations.”
The stakes, then, are very high. Depending on how the Court rules, it may decide whether the precedent represented most recently by Citizens United v. FEC—that corporations have free speech rights—dictates that they should have free exercise rights as well. In addition to arguments based on the free speech cases, the plaintiffs have argued that the separation of the Free Exercise and Free Speech Clauses by a semicolon requires that the two clauses be interpreted, for these purposes, identically. (Filmmaker Drew Emery calls the upcoming Supreme Court case “the world’s most closely watched semicolonoscopy.”)
In Conestoga, though, the Third Circuit rejected those arguments. “We are not persuaded that the use of a semi-colon means that each clause of the First Amendment must be interpreted jointly,” the majority wrote. Beyond the semicolon, the Court found, “We are unable to determine that the―nature, history, and purpose‖ of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision.” What’s more, the Third Circuit was unpersuaded that a company’s owners’ free exercise rights “pass through” to the corporation.
In contrast, the majority in Hobby Lobby took a very expansive view of a corporation’s religious rights. “A religious individual may enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values,” the majority wrote. “As a court, we do not see how we can distinguish this form of evangelism from any other.”
In addition to being the most closely watched semicolonoscopy, these cases could turn out to be the most closely watched expansion of religious freedom rights in recent memory. If the 10th Circuit decision in Hobby Lobby is affirmed, it would expand religious freedom rights for corporations, and diminish them for individuals doing business with them (in this case, the corporation’s employees). Such a ruling could have wide-ranging implications, far beyond the impact on employees seeking insurance coverage for contraception.