Civil and Human Rights

Corporations are (religious) people, too?

The Supreme Court heard arguments today in a case challenging the constitutionality of the Affordable Care Act’s mandate that companies providing insurance for their employees include free contraceptive coverage.


Although Sebelius v Hobby Lobby features the hot-button topics of birth control and President Barack Obama’s health care reform programme, the case turns on a different point.


The key question is whether corporations can take on the religious beliefs – and, consequently, the constitutionally protected religious freedoms – of their owners.


Defenders of the insurance mandate argue that giving corporations this kind of ability would be a dangerous precedent.


“To obtain a religious exemption from the mandate, Hobby Lobby’s owners need to imbue the corporation with their personally held religious views,” writes Salon’s Brian Beutler. “And that requires altering the distinction between shareholder and corporation in fundamental and potentially disruptive ways.”


“On many levels, the Hobby Lobby case is a mess of bad facts, political opportunism, and questionable legal theories that might be laughable had some federal courts not taken them seriously,” writes Stephanie Mencimer of Mother Jones.


She continues:


Women’s groups fear a ruling that would gut the ACA’s contraceptive mandate. The business community, meanwhile, doesn’t want to see the court rule that a corporation is no different from its owners because it would open up CEOs and board members to lawsuits that corporate law now protects them from, upending a century’s worth of established legal precedent.


The Constitutional Accountability Center’s Tom Donnelly warns that a ruling in favour of Hobby Lobby would open up a judicial can of worms, as lower courts would be forced to determine which practices and beliefs are entitled to protection. 


“Courts have balked at going down this path in the past – and for good reason,” he writes. “Furthermore, the Supreme Court has never granted a religious accommodation to a secular business that comes at the expense of its employees – an unprecedented move that would allow secular employers to effectively impose their own religious views on the employees, even in the face of contrary laws.”


In a Washington Post opinion piece, attorney Sandra Fluke – who gained national prominence in 2012 after testifying before Congress about insurance coverage of contraception – says that if Hobby Lobby prevails, “any private company could argue that religious beliefs prevent it from offering vital employee protections”.


She writes:


Depending on the exact ruling, any for-profit corporation could cut off its employees’ insurance coverage for blood transfusions, vaccinations or HIV treatment – all of which some Americans have religious objections to. Any critical health coverage the boss doesn’t agree with could be eliminated.


Opponents of the mandate counter that the case is about religious freedom – and point to the Religious Freedom Restoration Act, passed by Congress in 1993, which requires the government to have a “compelling interest” when enacting laws that “substantially burden” the free exercise of religion.


“The Obama administration contends that starting a for-profit business means leaving religious liberty behind,” writes University of Missouri law professor Joshua Hawley. “The administration has effectively told the Supreme Court that for-profit companies have no right to act on moral convictions the government opposes. They are about profits. That position is deeply mistaken.”


He goes on to explain why:


This combination of conscience and enterprise is a vital part of our free-market tradition. If the 2008 financial debacle taught anything, it is that focus on profits above all can cause terrible damage. It was a profits-first mentality that encouraged lenders to deceive customers, ratings agencies to deceive banks, and banks to deceive each other.


The Heritage Foundation’s Derrick Morgan contends that the left’s position in this case is ironic.


“In a reversal of commonly held stereotypes, many so-called progressives now seek government-enforced conformity,” he writes. “The left used to argue that we should be free to live without fear of government sanction. Today they insist everyone agree with them – or else.”


The Federalist’s Gabriel Malor blasts the media for what he sees as a misrepresentation of what the case is about:


The leftist papers do not mention the substantial monetary burden put on religious business owners to violate their consciences. The papers do not mention that contraception was both inexpensive and widely available before the contraception mandate, and still is. The papers omit to mention that it isn’t the businesses who have radically changed, but the mandates from government.


He also says that no one is talking about the fact that the the Obama administration has made allowances for non-profit corporations that oppose the mandate.


“Liberals seem focused on the ‘for-profit’ characterization of the businesses involved in this case because, by exempting thousands of non-profits from the mandate, they’ve little else to stand on,” he says. “I’m sure the leftist bias against profit also plays a role.”


The court could carve out a smaller exception to the contraception mandate for corporations that have close ties to their founders/owners. Rick Warren, a pastor whose Saddleback Church in California has a national following, describes what he sees as the difference.


“Hobby Lobby is not a secular, publicly traded company,” he writes. “Rather, it is the personal, purpose-driven mission of one of the most devout families I’ve ever met.”


He adds:


The administration is insisting that those who form and operate a family business based on religious beliefs must disobey what they believe is God’s standard in order to obey the government’s program. The administration wants everyone to render unto Caesar not only what is Caesar’s but also what is God’s.


There’s also the possibility, writes Georgetown Law Prof Martin Lederman, that the court could rule that there is no contraceptive “mandate” at all. If corporations did not want to provide the required coverage, they could stop offering insurance altogether. Their employees would purchase insurance from the health care exchanges, and the employers would pay a tax that supports the government-managed insurance system.


“Lederman’s analysis gives the court an easy out in Sebelius v Hobby Lobby, allowing it to avoid the dicey questions of whether corporations have religious-freedom rights, whether scientific ignorance is a religious belief – or even whether the plaintiff is sincerely religious or simply part of a larger Republican-led political effort to kill off Obamacare,” Mother Jones’s Mencimer writes.


It’s the kind of cut-the-baby-in-half, leave-no-one-happy solution the Supreme Court endorsed with its last round of decisions upholding the bulk of the Affordable Care Act but striking down the requirement that states expand their health care coverage for the poor.


We’ll likely have to wait until June before the court announces its decision.

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