This week, the U.S. Supreme Court heard oral argument in two cases brought by for-profit corporations challenging the Affordable Care Act’s (ACA) birth control benefit, which requires that health plans include coverage for contraception—a basic health service that 99 percent of women use at some point in their lives. Hobby Lobby, a national chain of arts and crafts stores, and Conestoga Wood Specialties, a furniture manufacturer, argue the ACA’s requirement that health plans cover contraception violates their religious liberty rights by forcing them to participate in a process that ends with women accessing and using birth control.
Hobby Lobby and Conestoga Wood Specialties are pursuing a radical proposition: that corporations have a right to impose religious beliefs on their employees by withholding benefits otherwise legally guaranteed to the women who work there. As others have noted, a win for the companies in these cases could open the door to all sorts of claims that corporations can opt out of laws that have helped shape our society and matter deeply to Americans, from Social Security to labor and civil rights laws. We have already seen a preview of what this could mean for the rights of LGBT individuals and families in the Arizona bill vetoed by Gov. Brewer last month.
It is important to note that, in the past, courts have rejected claims that religion-based arguments could allow restaurants to discriminate on the basis of race, or businesses to ignore wage-and-hour laws, for example. But several lower courts have ruled in favor of corporations in the birth control cases, and several justices seemed to favor their position this week.
This morning, I attended the Supreme Court oral argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius. In these two consolidated cases, the for-profit corporations Hobby Lobby and Conestoga Wood claim that they have a right to a religious exemption from federal regulations that require health-insurance plans to include coverage for contraceptives.
The corporations’ principal claim is based on the Religious Freedom Restoration Act of 1993 (“RFRA”), which generally provides that the federal government cannot substantially burden a person’s religious exercise unless it has a compelling interest in doing so. RFRA passed the House of Representatives unanimously and the Senate by a vote of 97 to 3.
As Justice Ginsburg suggested at today’s argument, it is inconceivable that RFRA would have received such broad support, let alone passed at all, if the members of Congress who voted for it had had any inkling of how opponents of the contraceptive-coverage regulations would attempt to use RFRA today. Represented by former Bush administration Solicitor General Paul Clement, Hobby Lobby and Conestoga Wood have given RFRA such a broad interpretation that it would give religious entities carte blanche to override individual rights not just in the contraceptive-coverage arena, but in a virtually unlimited array of contexts.
Clement’s case begins with the proposition that for-profit corporations can somehow exercise religion and therefore be entitled to RFRA’s protections. Justice Sotomayor asked how does a for-profit corporation exercise religion, who in the corporation decides what the corporation’s “religious beliefs” are, and how much of the corporation’s activities must be religious for RFRA to apply. Justice Scalia subsequently indicated that it would be sufficient if those who control the corporation merely assert what the corporation’s “religious beliefs” are for such “beliefs” to be protected under RFRA.
by Craig Konnoth, Deputy Solicitor General, Office of the Solicitor General, California Department of Justice; Co-Author, Brief amici curiae of California, et al. in support of the Government, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius; Member, Board of Directors, ACS Bay Area Lawyer Chapter
* The views expressed in this post are the author’s own, and do not reflect those of any institution with which he is affiliated or employed.
As the Supreme Court heard oral arguments today in the “contraceptive mandate” cases, one question that everyone is grappling with has to do with the ramifications of the decision. These cases concern whether the Religious Freedom Restoration Act (RFRA), which prohibits federal law from imposing a substantial burden on a person’s exercise of religion, excuses for-profit corporations from providing access to contraceptive coverage to their employees. For the Court to rule in favor of the corporations, it must hold that (1) a corporation has free exercise rights under the statute, (2) that the burden the mandate imposes is substantial and (3) the interests the mandate serves are not compelling. Ruling in favor of the plaintiffs on any of these grounds will have substantial effects for doctrine across the board.
However, one possible result that has received less (if any) attention is the effect that the Court’s holding will have on state laws relating to numerous areas including antidiscrimination, insurance coverage, land use and corporations law. There is good reason for this oversight. In Boerne v. Flores, the Supreme Court held that RFRA could not limit state law—so the Court’s holding as to the reach of RFRA will not inhibit the reach of state law. And because this is a statutory holding, and the Court shows no immediate signs of re-incorporating the RFRA test into constitutional doctrine, the effects on First Amendment doctrine (which does limit state law) will be limited.
But there is, nonetheless, a good chance that a loss for the government will affect state regulation. First, in the area of land use, the Religious Land Use and Institutionalized Persons Act (RLUIPA), unlike RFRA, has does (as of now, at least) apply to localities. While there may be textual reasons why RLUIPA could be read differently that do not bear deep excavation, the bottom line is that RLUIPA was basically modeled after RFRA. If corporations can invoke RFRA to escape federal regulation, they may well be able to invoke RLUIPA to escape basic zoning regulation, from which, so far, only churches and religious institutions have so far been exempt.
“I realize that my calling the United States a ‘colonial’ nation is repugnant to most Americans,” acknowledged Judge Juan R. Torruella of the U.S. Court of Appeals for the First Circuit at a recent Harvard Law School conference. “[B]ut do you think that the reality of this fact of life is any less repugnant to those of us who find ourselves in the degrading status of second-class citizens, merely because we reside as citizens of the United States in a piece of land that, although belonging to the United States and owing allegiance thereto, has been declared by judicial fiat to be an unequal part of this nation?”
In his keynote remarks, Judge Torruella, who resides in Puerto Rico, expressed frustration and indignance on behalf of the 4 million residents of U.S. territories who remain unjustly bound by the dead hand of the past.
In a series of infamous decisions at the turn of the twentieth century known as the Insular Cases, the Supreme Court established a judicial doctrine recognizing two kinds of territories: incorporated territories, including those acquired before the Spanish-American War, and unincorporated territories, including Puerto Rico, the Philippines, Guam and others. The Court extended only certain rights to residents of unincorporated territories because, as one Yale professor reasoned in 1899, “[it would be unwise] to give … the ignorant and lawless brigands that infest Puerto Rico … the benefit[s] of [the Constitution].”
For more than a century, the Insular Cases have stood as controlling precedent, granting broad congressional authority for governing both kinds of territories and defining their relationship to the Constitution. American Samoa has long borne the brunt of this second-class status; as of 2005, it remains one of only two territories whose residents are labeled as “non-citizen U.S. nationals.” That reality may soon change, however, with a favorable ruling in Tuaua v. United States.
by James C. Nelson, Justice, Montana Supreme Court (Retired)
There is gathering national support acknowledging that lesbian, gay, bisexual and transgender (LGBT) citizens are simply that—citizens—with the same rights, privileges and obligations as other citizens. In response, some States, along with various fundamentalist religious and conservative organizations are fighting for a legally protected right to discriminate. This right to discriminate is grounded in the First Amendment’s “Free Exercise” clause. As the theory goes, being able to discriminate against LGBT citizens is necessary to preserve the First Amendment right to the free exercise of religion for these States’ fundamentalist religious heterosexuals and conservative organizations.
This stratagem is not only patently specious; it is legally insupportable.
Contrary to the homophobic fear-mongering by religious fundamentalists and conservatives, there is no legal support for the notion that a State which has recognized the equal rights of LGBT citizens can force a religious organization to adopt those same views. If Religion X condemns gay people, the State cannot, require Religion X to perform a gay or lesbian marriage or change its doctrinal beliefs against homosexuality under threat of governmental penalty. Indeed, if the State attempted to do that, it would violate the free exercise clause of the First Amendment. And, of course, for that reason, no State has made any such demands on any sectarian organization.
Yet, in Arizona, Idaho, Kansas, Nevada, Oregon, South Dakota, Tennessee, Oklahoma, Mississippi, Ohio and Utah religious and conservative organizations and, in some cases, their supporters in the state legislatures are actively promoting the adoption of laws that would permit any individual or group to discriminate in a variety of contexts based on religious beliefs. Such laws would allow business owners, for example, to discriminate against LGBT customers in much the same fashion that businesses run by racists once discriminated with impunity against people of color. A government official could deny same-sex couples basic services and benefits based solely on that official’s religious beliefs. Indeed, Arizona has even proposed to allow the denial of equal pay to women and the abrogation of contractual rights in the name of religion. In other words, one’s personal religious beliefs trump legal obligations imposed generally upon and for the benefit of all.