Civil and Human Rights

Contraceptives, Corporations, and Obamacare

By Damon Root


Do for-profit corporations get to enjoy the free exercise of religion? That question lies at the heart of next Tuesday’s Supreme Court battle over the so-called “contraceptive mandate,” the provision of the Patient Protection and Affordable Care Act requiring most employers to cover birth control in their health care plans.


According to Hobby Lobby Stores Inc., an arts-and-crafts retailer owned and operated by a family of evangelical Christians, the contraceptive mandate forces both the business and its owners to violate their religious scruples by providing access to four methods of birth control they see as equivalent to abortion, such as the emergency contraceptive Plan B.


That requirement, Hobby Lobby maintains, violates the Religious Freedom Restoration Act (RFRA), a 1993 law signed by President Bill Clinton which says the government may not “substantially burden a person’s exercise of religion,” unless it has a “compelling” justification and has used “the least restrictive means” available. The contraceptive mandate, Hobby Lobby told the Supreme Court in its main brief, “is a textbook ‘substantial burden’ on religious exercise under RFRA.”


The mandate’s defenders take the opposite view, arguing that Hobby Lobby should lose because a for-profit corporation is unable, by definition, to exercise religion. As David Gans of the liberal Constitutional Accountability Center put it, “corporations cannot pray, do not express devotion and do not have a religious conscience.” Therefore, he argued, “the justices should reject the notion that a corporation is a person that exercises religion.”


But that argument is too simplistic. Churches, who are themselves non-profit corporations, also fit the above description. Yet no court would ever rule that a church does not fall under the protection of the First Amendment’s Free Exercise Clause because the church itself “cannot pray.”


Nor is it unusual for the courts to recognize an exercise of religion by a for-profit enterprise. Indeed, the entire kosher food industry offers a ready example. In 2002, for instance, the U.S. Court of Appeals for the 2nd Circuit ruled in favor of Commack Self-Service Kosher Meats, Inc., a corporate entity based in Long Island, New York, which had challenged the state’s narrow definition of “kosher” on constitutional grounds, including the Free Exercise Clause.


In short, when it comes to the legal argument over corporations and the free exercise of religion, Hobby Lobby has a strong case.


But the federal government has also some important precedent on its side. Most notably, in the 1982 case of United States v. Lee, the Supreme Court ruled unanimously against an Amish farmer who refused to file Social Security taxes for his employees on the grounds that his faith required the community, not the government, to provide support for the elderly.


The Supreme Court agreed that this was a valid religious objection, but then voted against the man anyway. “Compulsory participation in the social security system interferes with [the Amish’s] free exercise rights,” the Court acknowledged, but “not all burdens on religion are unconstitutional.” Because Social Security is a “comprehensive national program” that serves “an overriding governmental interest,” Lee declared, the restriction on religious liberty was permissible. Furthermore, the ruling held,


Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.


The outcome of Hobby Lobby may well turn on the Court’s application of that 1982 decision. If a majority of the justices view the Patient Protection and Affordable Care Act as an equally “comprehensive national program” serving an “overriding governmental interest,” then the contraceptive mandate will survive even if the Court declares it to be a substantial burden on the free exercise of religion.


To be sure, that result will not satisfy the many religious and political conservatives who have lined up in support of Hobby Lobby’s position. But if the Supreme Court is looking to make a broad statement on behalf of religious liberty while at the same time leaving the federal government’s vast regulatory power in place, the justices have a roadmap to follow.


Oral argument in Sebelius v. Hobby Lobby Stores, Inc. is scheduled for March 25, 2014.

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