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.
During the 1950s, Victor Green wrote The Green Book, a travel guide listing restaurants and businesses that welcomed the patronage of African-Americans during the Jim Crow era. Writing for The American Prospect, Kent Greenfield—Professor of Law and Law Fund Research Scholar at Boston College Law School and Faculty Advisor for the Boston College Law School ACS Student Chapter—explains why, “after Tuesday’s arguments at the Supreme Court, we may need to dust off the Green Book and indeed initiate new editions for women, LGBT people, Muslims, and Jews.”
“The U.S. remains the only country in the world that imposes [life without parole] on children.” Steven M. Watt at the ACLU’s Blog of Rights tells the tragic story of Juwan Wichware and argues that “any punishment kids do receive should reflect their unique capacity for rehabilitation.”
Yesterday, the Supreme Court heard oral argument on whether “Secret Service agents can be sued for moving a group of protesters out of earshot of President George W. Bush in 2004.” NPR’s Nina Totenberg breaks down Wood v. Moss.
At TPM’s Editor’s Blog, Nan Aron calls for more diversity from the federal bench and notes “why it is so important that the people who may someday judge us represent a broad cross section of the American people.”
Frank Ackerman at the CPRBlog describes how the Koch-funded Beacon Hill Institute is producing a “steady stream of anti-environmental analyses.”
Katie Hamm and Erika Basurto at the Center for American Progress reveal how “the Strong Start Act would significantly improve access to early education for low-income children.”
An Arizona federal court has ordered Maricopa County Sheriff Joe Arpaio to stop “systematically [profiling] Latinos.” U.S. District Court Judge G. Murray Snow said that Arpaio had been “targeting [Latinos] for arrest during raids at day-laborer gathering spots and detaining them longer than other drivers during traffic stops.” Fernanda Santos of The New York Times comments on the case.
Researchers believe that The Department of Corrections’ newly expanded lethal-injection combinations in Oklahoma “will significantly amplify the risk of inmates' facing inhumane and possibly unconstitutional pain and suffering.” Samantha Vicent at Tulsa World reports on the troubling issue.
The Colorado Supreme Court has approved a law allowing lawyers to work with marijuana businesses. Writing for The Denver Post, John Ingold discusses the legal implications of the new rule.
Amy Howe at SCOTUSblog provides extensive coverage on yesterday’s oral argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius.
Yesterday the Supreme Court heard arguments in the long awaited cases of for-profit corporations arguing that Obamacare's contraception mandate endangers their constitutional and statutory religious exercise rights. Both Hobby Lobby Stores Inc., a national arts and crafts store chain, and Conestoga Wood Specialties Corp., a small kitchen cabinet maker, argued that they should be exempt from the health insurance regulations due to not just their owners’ beliefs, but their corporate consciences. Rather than focus on whether a company is a "person" that "has" a statutory or constitutional right to free exercise of religion, the Justices could have pushed harder on a constitutional question that comes first: whether the lawsuit even belongs in a federal court.
During the arguments, Justice Elena Kagan noted: “I'm not sure I understand it as a threshold claim that . . . the claim is not recognizable at all.” And Justice Anthony Kennedy asked: “You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.” Does Hobby Lobby have standing to sue? For a federal judge to hear a case, Article III of the Constitution requires there to be a “Case or Controversy.” The Supreme Court has interpreted the requirement to mean that a plaintiff must suffer a "concrete injury" to its own interests – and not those of others – in order to sue. The Court has kicked out cases holding that a "mere interest in a problem" was not concrete enough. The Court has only in unusual cases allowed a third-party to sue on behalf of another, like an employee, owner, or customer.
These companies say that they suffer direct harm: the contraception mandate costs them money. That is what the Tenth Circuit in Hobby Lobby briefly noted: the companies “face an imminent loss of money, traceable to the contraceptive-coverage requirement.” But even if that is true (which was the subject of tough questions at the arguments), paying that money does not directly affect any individual’s ability to freely exercise religion. Only the employees and officers can directly exercise their individual religious beliefs. And they are not the ones paying to comply with the regulations. They are separate from the company.
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.