Previewing Tomorrow’s Hobby Lobby Decision
Tomorrow the Supreme Court holds the final session of the term that began on the first Monday in October 2013. Since there are only two cases left to be decided, we already know what’s going to happen. One case, Harris v. Quinn, deals with whether certain home health care workers can be required to join a union. It’s the other case, actually two consolidated cases, though, that is the one that everyone will be paying attention, and which will likely burn up a good part of the news cycle for the rest of this week.
In Burwell v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties v. Burwell, 1 the Court is dealing with essentially identical issues, namely the question of whether or not the personal religious beliefs of the owners of a for-profit corporation should be sufficient justification for their refusal to comply with the mandate established under the Affordable Care Act requiring employers to provide coverage for contraceptives in their employer-provided health care plans. Hobby and Contestoga, along with other private employers that have brought similar lawsuits across the country, have claimed that the regulation violates their rights under the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act in that it requires them to pay for certain drugs which they contend are abortifaceants. These claims have met with inconsistent success in the Circuit Courts, although the employers have scored significant victories based primarily on their arguments under the RFRA, as I noted here and here. In November, two of those cases were accepted for appeal by the Supreme Court. In light of how the oral argument went, the expectation from most legal analysts is that tomorrow’s decision will result in a ruling in favor of Hobby Lobby and Conestoga under the Religious Freedom Restoration Act. The unanswered question at this point is how wide or narrow that ruling might be, because the implications of a ruling that provides private entities with a basis to assert the religious preferences of their owners could be quite far reaching.
Claire O’Connor at Forbes outlines some of the implications of such a decision:
[T]here’s far more at stake than the rights of women workers to contraception access, according to experts who’ve studied this case and its precedents.
“If the Supreme Court gives corporations rights under the Religious Freedom Restoration Act, it could be a sea change,” said Marci Hamilton, constitutional law expert and author of newly released book God vs. the Gavel: The Perils of Extreme Religious Liberty.
“Hobby Lobby is discriminating against employees who don’t share their faith. This is another step towards filling the workplace with coreligionists.”
Hers is a concern shared by Rev. Barry Lynn, executive director of Americans United for Separation of Church and State.
In a recent teleconference organized by women’s health advocacy nonprofit Catholics for Choice, he described a hypothetical Hobby Lobby victory as “a Pandora’s Box with some very ugly creatures flying out.”
“Scientology-believing employers could insist on non-coverage of its nemesis, psychiatry,” he said. “Jehovah’s Witness-owned corporations could demand exclusion from surgical coverage, under the theory that so many of such procedures require the use of whole blood products forbidden by their faith.”
He added that the Religious Freedom Restoration Act now being debated in the Supreme Court was never intended to be used by large companies like Hobby Lobby, which operates 500 stores. Rather, when it was introduced in the early 1990s, it was intended for niche instances like the rights of Muslim firefighters to wear beards or the use of sacramental wine for religious services in otherwise dry counties.
“If anyone had suggested that a national chain of for-profit craft stores employing over 10,000 people could use this statute to avoid coverage of contraceptives in an insurance plan, it would have been a shot heard round the world,” Lynn said.
Lyle Denniston discusses what is likely to happen next on this issue regardless of which side wins:
It is now nearly a certainty that a second round in this health care dispute, involving non-profits, will reach the Court in the new Term that opens in October. Already, Justice Elena Kagan has given the University of Notre Dame additional time to file an appeal in a case from the U.S. Court of Appeals for the Seventh Circuit. Appeals also were promised in both of the applications filed Friday. The charities in those cases face Tuesday deadlines to take action to obey the mandate.
Under the new federal health care law, profit-making businesses are not entitled to any exemption from the mandate’s requirement that they provide pregnancy preventive services in existing employee health plans. Non-profit groups that are directly affiliated with churches, synagogues, and mosques were granted a religious exemption by the federal government, but not all non-profits with religious objections qualify. That includes many Roman Catholic colleges, hospitals, and other charities.
Last January, in a case involving a Colorado Catholic charity, Little Sisters of the Poor, the Court gave the group temporary relief from the mandate, while a challenge proceeds in an appeal to the U.S. Court of Appeals for the Tenth Circuit. In that order, the Justices crafted an approach entirely outside the terms of the federal law.
The charity, the order said, would not have to perform any duties spelled out under the law, if it simply wrote a letter to government officials saying they were a religious non-profit group with objections based on faith to the mandate. The Little Sisters of the Poor did write such a letter.
In one of the new applications filed on Friday, a non-profit Catholic TV station in Alabama, the Eternal Word Television Network, told the Court that it would like the same kind of order in its case. Its case is pending in the U.S. Court of Appeals for the Eleventh Circuit, but the station’s lawyers said they would be asking the Supreme Court soon to take on the case without waiting for the court of appeals to rule.
That application was filed with Justice Thomas, who handles emergency requests for legal orders in the geographic region that is the Eleventh Circuit.
The second application was filed by the Catholic Diocese of Cheyenne, Wyoming, along with Catholic Charities of Wyoming, St. Joseph’s Children’s Home, St. Anthony Tri-Parish Catholic School, and Wyoming Caholic College. They, too, object to taking any steps to obey the birth-control mandate, and note that they face heavy penalties beginning Tuesday if they are not protected.
That plea was filed with Justice Sotomayor, who handles such requests in the geographic region that is the Tenth Circuit.
Beyond birth control, there are countless other areas where a broadly expansive ruling on the RFRA’s application to this situation would have a big impact. In the employer-employee context, it would theoretically mean that an employer would have the basis to deny coverage for other medical conditions or procedures if they can put forward a credible religious objection to the same. Outside of that relationship, such a ruling would have an obvious impact on the issues that have arisen in recent years surrounding same-sex marriage and the question of whether certain businesses — such as wedding photographers and bakers — should have a right to refuse to provide service to same-sex wedding ceremonies notwithstanding any applicable law banning discrimination based on sexual orientation. Depending on how broadly the Court rules tomorrow, there would seem to me to be a strong argument in favor of such vendors being able to exempt themselves from generally applicable laws such as anti-discrimination laws. Indeed, in anticipation of this decision several states have already made moves to strenthen their own versions of the RFRA to give protection to businesses in these types of situations. In those states, obviously, it wouldn’t matter what the Supreme Court decides.
Everything will have to wait until tomorrow, of course, but as things stand I would expect that we’ll get a decision that grants Hobby Lobby and ConIestoga the exemptions that they are claiming under the law. What happens after that is an entirely different question.
Note: I discussed the legal issues at stake in these cases in greater detail in a post that was written after the appeals were granted by the Supreme Court.
1 The style of both cases changed to reflect the fact that Sylvia Burwell is now the Secretary of the Department of Health and Human Services.