New York Times
Ruling Could have Reach Beyond Issue of ContraceptionWASHINGTON — The Supreme Court on Tuesday will
hear arguments in a case that pits religious liberty against women’s rights.
That issue is momentous enough. But it only begins to touch on the potential
consequences of the court’s ruling in the case, notably for laws banning
discrimination against gay men and lesbians.
The question directly before the justices is whether for-profit corporations
must provide insurance coverage for contraception, a requirement of the
Affordable Care Act. Hobby Lobby, a chain of crafts stores, challenged the
requirement, saying it conflicts with the company’s religious principles.
“If Hobby Lobby were to prevail, the consequences would extend far beyond the
issue of contraception,” said Walter Dellinger, a former acting United States
solicitor general who filed a
brief urging the court to uphold
the law
Objections to laws based on religious beliefs can arise in many settings, and
supporters of the coverage requirement say a ruling for the company could
frustrate the enforcement of laws addressing health, safety and civil rights.
“We would be entering a new world in which, for the first time, commercial
enterprises could successfully claim religious exemptions from laws that govern
everyone else,” Mr. Dellinger said. “A win for Hobby Lobby could turn out to be
a significant setback for gay rights.”
Richard W. Garnett, a law professor at Notre Dame who filed a
brief on the other side, said
that overstated matters.
“The prediction that a win for Hobby Lobby — a case that is not at all about
discrimination or denial of service and instead is about deeply held views
regarding the sanctity of life — would be a serious setback for gay rights is,
in my view, unfounded,” he said.
Few businesses, he said, could show that laws banning discrimination on the
ground of sexual orientation impose a substantial burden on religious beliefs.
An exception, he said, might be an objection from a wedding photography company
seeking to turn down business from same-sex couples.
The court’s ruling in the Hobby Lobby case could also affect other kinds of
laws. In a
brief filed this month, Solicitor
General Donald B. Verrilli Jr. warned the justices that a broad decision
striking down the contraception provision could imperil minimum wage and
overtime laws, Social Security taxes and vaccination requirements, all of which
have been subject to religious challenges in earlier cases.
Another brief, from California, 14 other states and the District of
Columbia, argued that such a decision would allow businesses to seek to deny
coverage for blood transfusions, immunizations, treatments involving stem cells
and psychiatric care.
But Michigan and 19 other states countered that
protecting religious freedom is “as American as apple pie.” That freedom, they
said, protects “a Jewish-owned deli that does not sell nonkosher foods” and “a
Muslim-owned financial brokerage that will not lend money for interest.”
The justices will analyze Hobby Lobby’s challenge under the Religious
Freedom Restoration Act of 1993, which requires the federal government to
meet a demanding standard when it imposes burdens on religious beliefs.
Eighteen states have religious freedom laws similar to the federal one, and
additional bills are pending in Hawaii, Missouri, Mississippi, Oklahoma and
Wisconsin, according to a survey from the American Civil Liberties Union. Last
month, Gov. Jan Brewer of Arizona, a Republican,vetoed
a religious freedom bill after
objections from business leaders and others who said the measure would have
allowed discrimination against gays.
Douglas Laycock, a law professor at the University of Virginia, said he was
worried that a ruling against the corporations in Tuesday’s case would threaten
to unravel important safeguards in religious freedom laws. “The whole secular
left has decided,” he said, that such laws “are very dangerous because they care
so much more about the contraception cases and gay rights.”
Professor Laycock, who filed a
brief supporting the
corporations, said the laws had been mischaracterized. Though they vary in some
details, they generally require the government to have good reasons for imposing
burdens on religious practices. That is, he said in a
blog postlast month, they require courts to scrutinize challenged actions
but do not dictate which side should prevail.
The 1993 law was enormously popular when it was enacted. It was a response to a
1990 Supreme Court decision that
declined to recognize religious exceptions under the First Amendment’s free
exercise clause to generally applicable laws. Congress effectively reversed that
decision.
The law was sponsored by Senator Edward M. Kennedy, Democrat of Massachusetts,
and Senator Orrin G. Hatch, Republican of Utah, and it was approved by a 97-to-3
vote in the Senate and by voice vote without objection in the House.
“What this law basically says,” President Bill Clinton said
before signing the bill, “is that the government should be held to a very
high level of proof before it interferes with someone’s free exercise of
religion.”
At the time, most people thought the law would protect idiosyncratic religious
beliefs from insensitive regulations. In praising the law, Vice President Al
Gore said that,
for instance, it would allow families to object on religious grounds to laws
calling for mandatory autopsies.
Two decades later, the law is at the center of challenges from adherents of
mainstream religions who object to coverage requirements that the law’s
supporters say are crucial to women’s health and gender equality.
The Supreme Court’s analysis under the 1993 law has four steps. The justices
must first determine whether for-profit companies or their owners are entitled
to invoke it.
That question is reminiscent of the one in Citizens
United v. Federal Election Commission, the 2010 campaign finance decision
based in part on the free speech rights of corporations. Its counterpart in the
context of religious freedom has divided the lower courts.
In July, the United States Court of Appeals for the Third Circuit, in
Philadelphia, ruled that
the Conestoga Wood Specialties Corporation, which makes wood cabinets and is
owned by a Mennonite family, could not invoke the 1993 law because “for-profit,
secular corporations cannot engage in religious exercise. In June, the United
States Court of Appeals for the 10th Circuit, in Denver, came
to the opposite conclusion, saying that Hobby Lobby was a “person” under the
1993 law.
If the Supreme Court concludes that the corporations or their owners may invoke
the law, it must then determine whether the contraception coverage requirement
places a “substantial burden” on religious practices.
Hobby Lobby, which has more than 500 stores and more than 13,000 full-time
employees, is owned by a family that says its tries to run its business on
Christian principles. The family says that providing coverage for some drugs and
devices would make it complicit in practices tantamount to abortion.
That position is contested as a scientific matter, but the Obama administration told
the justices that the family’s
“sincerely held religious opposition to certain forms of contraception is not
subject to question in these proceedings.”
Hobby Lobby says its failure to offer comprehensive coverage could subject it to
fines of $1.3 million a day. Dropping insurance coverage for its employees, it
added, would be disruptive and unfair and lead to fines of $26 million a year.
Those penalties, the company says, amply satisfy the required “substantial
burden.” But Martin Lederman, a law professor at Georgetown, responded that
the company would be better off financially if it stopped providing health
insurance and paid a relatively modest fine.
The final steps in the analysis, should the court find a substantial burden, are
an application of the most demanding test in constitutional law, under which the
government must show that the coverage requirement is “the least restrictive
means of furthering” a “compelling governmental interest.”
The consolidated cases Tuesday — Sebelius v. Hobby Lobby Stores, No. 13-354, and
Conestoga Wood Specialties v. Sebelius, No. 13-356 — are likely to be decided by
the end of June.