WASHINGTON, D.C. - Later this week or early next week, the Supreme Court will decide Sebelius v. Hobby Lobby, the most watched-case on its docket this term. The case is important because it could affect the implementation of the Affordable Care Act if the plaintiffs win. The decision will likely influence battles around the country about gay marriage as well.
Here are the nuts and bolts of the case:
The Green family owns Hobby Lobby Inc. and tries to run the business in accordance with their Christian beliefs. They argue that the ACA mandates them to provide health insurance coverage to their employees, and that coverage includes forms of birth control (IUDs and morning-after pills) they believe are morally equivalent to abortion. The Greens argue that this forces them to violate their religious beliefs, which would be a violation of the First Amendment. They are asking for an “accommodation,” meaning an exemption from the ACA or parts of it.
The bare-bones legal argument Hobby Lobby makes in its brief to the court runs like this:
Though Hobby Lobby is a corporation, corporations have a right to free exercise of religion as the relevant law “draws no distinction between natural or corporate persons.” Hobby Lobby’s faith prohibits it from “facilitating abortion,” including providing health coverage that could be used by employees to purchase certain kinds of birth control. The government is forcing Hobby Lobby to provide this coverage or face “draconian consequences,” something Hobby Lobby calls the “contraceptive mandate.” This places an unconstitutional “substantial burden” on Hobby Lobby and the Greens and, though individual employees would ultimately make their own decisions about using the birth control in dispute, the potential of “facilitating” that eventuality is a burden on Hobby Lobby’s free exercise of religion. The government has no “compelling interest” that would justify forcing Hobby Lobby to comply with the law, so Hobby Lobby should be given an accommodation.
Corporations do not have the right to the free exercise of religion, and the relevant law, the Religious Freedom Restoration Act, does not cover them. Further, the Greens’ free exercise of religion is not burdened by the ACA in any direct way; their connection to the behavior that violates their beliefs is attenuated and indirect. Moreover, there is no “contraceptive mandate;” they are not forced to provide health insurance coverage because they went into business voluntarily, knowing laws govern business, and because they can opt not to offer insurance at all and pay a fine of $2,000 per employee instead. The government has compelling interests in not exempting the Hobby Lobby from the ACA, especially in protecting “employees [who] have rights that can’t just be trumped.” The government also has a compelling interest in fostering uniform compliance with the ACA.
The law that is most relevant to the case is the Religious Freedom Restoration Act of 1993 (RFRA). As the name of the statute implies, Congress was trying to restore something when it passed the law. At the time, a variety of civil rights and religious groups were upset with a 1990 decision by the Supreme Court in Employment Division v. Smith. In that case, the Court upheld Oregon’s denial of unemployment benefits to two Native Americans who were dismissed from their jobs after testing positive for mescaline, a chemical in peyote, which they had taken in a religious ritual.
The 1993 law was intended to help protect the free exercise of religion when it conflicts with the law, in certain cases. Later, it was held that RFRA did not apply to the states and many now have similar statutes.
Most religious accommodations, even after RFRA, have been granted to wholly religious institutions – for example, a Catholic hospital would not have to perform abortions. Granting Hobby Lobby one would be a substantial new frontier.
“The plaintiffs in these cases are seeking a type of religious exemption that has virtually no precedent in the history of free exercise and RFRA adjudication,” wrote Georgetown University Law professor Martin Lederman. “A win for Hobby Lobby would be the first time a for-profit entity was exempted from obeying a federal [law] because of the free exercise rights of its owners or managers… That opens a can of worms.”
Among the likely worms, if Hobby Lobby wins, would be a variety of challenges to the ACA. But the ramifications could be much broader than that, and longer lasting. “The Court’s decision in Hobby Lobby is likely to have a profound effect upon how other courts treat state and federal RFRA claims in the commercial sector going forward,” Lederman wrote.
For example, in Arizona earlier this year, the legislature passed a law that would have explicitly given for-profit organizations rights to the free exercise of religion. That potentially would have allowed, for example, a catering company to refuse all gay weddings without fear of being sued for discrimination. Indeed that was the intention of the legislators backing the bill. National attention came hard to Arizona and the governor vetoed the bill.
But new federal ammunition for those types of efforts is precisely what has gay rights and women’s rights advocates so worried, among others. Once you start, it isn’t hard to think of potential claims for religious exemptions from all kinds of laws – with motives ranging from sincere to partisan to mischievous. It could be a new front in the culture wars.
Court-watchers have been predicting that the justices will break down along their customary lines; Justices Roberts, Scalia, Thomas and Alito on one side, Justices Ginsburg, Breyer, Sotomayor and Kagan on the other, with Justice Kennedy as the swing vote.