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.
As the Supreme Court prepares to hear Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius, Leslie C. Griffin at Hamilton and Griffin on Rights discusses why “Conestoga could provide a more important—and dangerous—precedent than Hobby Lobby.” Walter Dellinger, Member of the ACS Board of Advisors, writes an op-ed for The Washington Post explaining why the Court should “reject claims of religious entitlement that so greatly burden the interests of others.” For more on the “contraception mandate” cases, read Professor Griffin’s ACSblogpost on the Religious Freedom Restoration Act and more.
Just weeks after Arizona Gov. Jan Brewer vetoed legislation that would allow businesses to discriminate on the basis of religion, an attempt in Georgia, to pass a similar bill last Thursday, has failed. Georgia Republican State Sen. Josh McKoon “attempted to attach the measure to two unrelated bills in the state legislature, hoping to get the controversial measure passed on the last day of the session.” Adam Serwer at MSNBC has the story.
Writing for the The New York Times, Member of the ACS Board of Directors Linda Greenhouse comments on the most recent decision from the high court regarding railroad rights-of-way to reveal “how far the Supreme Court should go to acknowledge the real-world context of its decisions.”
The public’s call for more transparency at the high court continues. At Jost On Justice, Kenneth Jost comments on the “Supreme Court’s obsession with secrecy.”
Gerard Magliocca at Concurring Opinions reveals how the “Four Horsemen”—the four conservative justices who opposed President Roosevelt’s New Deal programs from 1932–1937—made it to the Supreme Court.
Writing for The Global Legal Post, ACS Board Member Reuben Guttman addresses the growing “privatisation of America.” In the piece, Guttman discusses the extensive use of private contractors and questions whether “we really have a modern day United States Government ‘of the people, by the people, and for the people’?”
U.S. Attorney General Eric Holder testified last week before the U.S. Sentencing Commission about a proposal that would reduce the federal prison population. Among other things, the amendments would offer “modestly shorter sentence recommendations [for] low level, nonviolent drug offenders.” Jessica Eaglin at the Brennan Center for Justice has the story.
The Supreme Court is set to review a petition for certiorari in a case involving whether a photographing company can deny services to same-sex couples on the basis of religion. Richard Wolf at USA TODAY breaks down Elane Photography, LLC v. Willock.
As the high court prepares to hear oral argument in Sebelius v. Hobby Lobby Stores, Inc., Lawrence Hurley at Reuters notes how the justices could “dodge the contentious question of whether corporations have religious rights.”
Writing for The Daily Beast, Jamelle Bouie debunks the assumption that “culture” is to blame for inner-city black poverty.
At Opinio Juris, Julian Ku discusses his participation in a hearing of the Privacy and Civil Liberties Oversight Board that addressed the National Security Agency’s surveillance authority.