July 1, 2014
The Supreme Court announced its final two rulings of the term yesterday, with the highly anticipated Burwell v. Hobby Lobby Stores being the final ruling announced.
First, here’s a rundown of what the ruling held.
In a 5-4 ruling, Justice Alito, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas, held that 1993’s Religious Freedom Restoration Act protects closely-held for-profit corporations from the Department of Health and Human Services’ (HHS) “contraceptive mandate.”
The widely known “contraceptive mandate” requires employer-provided health care plans cover, “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling.”
The majority opinion found that, under RFRA, the contraceptive mandate “substantially burdened [the corporations’] exercise of religion,” and that “HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.”
There are two major legal points of which to take note.
The first is that, for the very first time in history, the Supreme Court has found that it is legally possible for a corporation to “practice religion.”
You may be wondering how a legally fictitious entity like a corporation could have the sincerely-held religious beliefs required to legitimately “practice religion.” The majority gets around this little technicality by imputing the religious beliefs of the corporation’s owners to the corporation itself (so, in a manner of speaking, owners of corporations get double the constitutional rights under the Free Exercise Clause).
The potential implications from this newly recognized corporate capacity for religious belief are not inconsequential.
As HHS and several commentators noted before the ruling was announced, such recognition may allow corporations to refuse to provide insurance coverage for blood transfusions, vaccinations, or antidepressants, under the guise of firmly-held religious belief? We don’t really know. All the majority says is that this opinion doesn’t relate to anything besides contraceptives.
But how long until corporations begin to sue to have these insurance mandates invalidated? There is nothing in the majority opinion on this point distinguishing contraceptives from these other forms of medical coverage. The majority simply observes there’s no evidence “that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.” Which, apparently, means that the majority need not address it at this time.
To be sure, just because only one issue has passed through Pandora’s Box so far doesn’t mean that *nothing else will in the future – especially when the Court just opened the box that much more.
The second major legal point here is a bit less substantial, but it remains significant nonetheless: the Court’s reshaping of free exercise jurisprudence.
Now, treatises will be written on the Court’s approach here for years to come; I’m only going to focus on one specific portion of the majority’s new jurisprudence. Namely, how the majority now treats religious accommodation relative to third parties.
Up until Hobby Lobby, free exercise jurisprudence was such that any accommodations for religious beliefs made by the government must “not significantly impinge on the interests of third parties.”
As Justice Ginsburg notes in her dissent, because of the religion-based exemptions bestowed on Hobby Lobby by the majority, “thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ” will be deprived of contraceptive insurance coverage.
Perhaps, as the majority insinuates, these services are simply benefits to which employees have no entitlement and are elective in nature. However, it’s quite unlikely that those employees now deprived of those benefits would agree with that conclusion.
In any case, what happens now that Hobby Lobby doesn’t have to pay for contraceptives insurance coverage for its employees? According to the majority, the “least restrictive means” that the government should have pursued was paying for this coverage itself (and that’s likely what’s going to happen).
Beyond the issue of the “contraceptive mandate,” however, it’s difficult to gauge what is going to happen next. Although the majority attempted to quiet fears raised about the implications of its ruling (specifically, that corporations may now be able to make a fresh argument for opposing all sorts of tax and anti-discrimination laws), Hobby Lobby has ventured into unknown territory, and we truly to do know what will materialize.