by Alex J. Luchenitser, Associate Legal Director, Americans United for Separation of Church and State
* Americans United filed a brief in defense of the contraceptive-coverage regulations in Hobby Lobby/Conestoga Wood, and represents three female university students in defense of another lawsuit filed against the regulations by the University of Notre Dame.
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.
What is more, the challengers of the contraceptive-coverage regulations have essentially taken the position that whenever an entity asserts that a governmental action substantially burdens the entity’s religious practice under RFRA, the government and the courts must accept that assertion, unless they can prove that the entity does not actually believe in it. Justice Alito appeared to endorse this position at today’s argument.
Justices Sotomayor and Kagan pointed out that the objecting corporations’ view of RFRA is so broad that it could mandate religious exemptions from virtually every federal law. “Religious” corporations could assert exemptions not just from the contraceptive-coverage requirements of the healthcare regulations, but from requirements that health-insurance plans cover blood transfusions, or vaccines, or medications containing traces of pork. They could even claim exemptions from employment-discrimination, minimum-wage, family-leave, and child-labor laws.
Clement’s answer was that the government would be able to defeat such RFRA claims by demonstrating a compelling governmental interest in support of most such laws. But Clement then argued that the government cannot demonstrate that it has a compelling interest under RFRA if it has provided exemptions from the law it seeks to enforce. As Solicitor General Donald Verrilli pointed out on behalf of the United States, many of the laws in question—including Title VII and the Americans with Disabilities Act—do contain significant exemptions.
Clement further suggested that a government-imposed burden on religion cannot satisfy scrutiny under RFRA so long as there is a conceivable alternative that would burden religion less while still advancing the government’s interest. Clement’s proposed alternative today was that the government provide for-profit corporations with the same accommodation that it has granted to religious non-profits, who need not include contraceptive coverage in their insurance plans at all because their insurers or plan administrators must provide the coverage separately.
Yet numerous non-profit corporations have filed suits challenging this accommodation under RFRA, represented by the same group of Religious Right lawyers who are representing Hobby Lobby and Conestoga Wood. Indeed, Clement himself refused to say at today’s argument that his clients would accept this accommodation if it were offered to them.
In Employment Division v. Smith, a case that triggered the passage of RFRA, Justice Scalia cautioned that an overly broad reading of the constitutional right to free exercise of religion would allow every person claiming a religious objection to governmental regulation “to become a law unto himself.”
Yet the arguments put forward today by Hobby Lobby and Conestoga Wood—apparently endorsed by the Court’s conservative Justices—would allow every corporation that claimed itself to be “religious” “to become a law unto [it]self.” To sum up, under the views of Clement and his allies, if those who control a corporation merely assert that a governmental action substantially burdens what they say the corporation’s “religious beliefs” are, the corporation would be entitled to the exemption unless the government has not allowed any other exemptions to the law it seeks to enforce and no one can think of a way to advance the government’s interests that burdens the asserted “religious beliefs” less.
One more note: virtually all the difficult questions posed to Clement today came from the Court’s three female Justices—Ginsburg, Sotomayor, and Kagan. The Court’s four most conservative Justices—Scalia, Thomas, Roberts, and Alito—appeared to unambiguously side with the “religious” corporations. Justices Kennedy and Breyer did not clearly reveal how they planned to vote, but the nature of their questions did not seem promising for the government’s side. It will be unfortunate if the Supreme Court votes along gender lines to allow corporations to violate women’s reproductive rights based on the religious beliefs of those who control them, while opening the door to even broader impositions by businesses of religion upon their employees.