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Salt Lake City lawyer Gregory W. Schulz explains SCOTUS decision in Hobby Lobby case

June 30, 2014

 

The United States Supreme Court ruled today that the Religious Freedom Restoration Act prevents the federal government from penalizing private, closely-held corporations who refuse to provide certain kinds of contraceptive devices because of a religious belief held by a corporation’s owners.

The 2010 Affordable Care Act (ACA) requires many business to provide insurance to their employees.  The ACA requires the employer-provided insurance to cover all forms of FDA-approved contraception – termed the contraception mandate.  Several business sued the government, citing religious beliefs which prohibited using or providing certain kinds of contraception.

This case was not about whether or not the contraception mandate violated the First Amendment’s guarantee of religious freedom.  Rather, the case was about whether or not the 1993 Religious Freedom Restoration Act (RFRA) prevented the mandate’s enforcement.

Congress passed RFRA in an effort to limit the impact of the 1993 Supreme Court Decision Smith v. Employment Division.  In Smith, the state of Oregon denied certain benefits to a member of the Native American Church because he ingested the illegal drug peyote as part of a bona fide religious ceremony.  Smith sued, arguing that the First Amendment’s guarantee of religious freedom gave him a right to use peyote as part of religious ceremonies.  The Supreme Court disagreed, reasoning that a person cannot be exempted from a generally applicable law simply because he or she asserts that some religious practice requires him or her to violate the law.

Congress felt that the result of Smith v. Employment Division unduly limited religious freedom, and passed RFRA in an effort to limit the case’s impact.  RFRA has two key requirements.  In order for the government to “substantially burden” religious exercise, the government must show that the proposed burden: (1) furthers a compelling government interest and (2) is the least restrictive means of furthering that interest.  RFRA’s two requirements were intended to make sure that the government only burdened freedom of religion if they had a very good reason for doing so, and that there was no better way to accomplish the government’s objective than to limit religious freedom.

Therefore, in the today’s case, there were four questions before the court:

  1. (1) Does RFRA apply to private, closely-held corporations?

  2. (2) Can corporations engage in the exercise of religion at all?

  3. (3) Is the contraception mandate a substantial burden on religious exercise?

  4. (4) Is the requirement that corporations provide comprehensive birth control coverage to all employees a compelling government interest which the government sought to accomplish using the least restrictive means?

First, the Court held that corporations are “persons” for the purpose of RFRA.  The Court reasoned that corporations are considered fictional “persons” under the law for a wide variety of purposes.  The Court also looked to what it considered to be RFRA’s purpose of providing very broad protection for religious exercise.

Second, the Court held that corporations are capable of exercising religion.  A lower court argued that corporations do not “pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.”  The Supreme Court responded that “[a]ll of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”  Further, the Court noted that all states allow for-profit corporations to undertake “any lawful purpose.”  Since religious exercise is a lawful purpose, it can therefore be undertaken by a for-profit corporation.

Third, the Court held that the contraception mandate significantly burdened religious exercise.  The Court so reasoned because it places religiously-motivated business owners in a predicament; either violate their religious tents or suffer serious economic harm.

Finally, the Court held that the contraception mandate was not the least restrictive means to accomplish the government’s apparent purpose of increasing access to contraception.   The Court stated that “the least-restrictive means standard is exceptionally demanding.”  The Court reasoned that there was at least one straightforward less restrictive means:  the government could simply buy contraception for those who wanted it.

Broadly, the Court’s reasoning is summed up in the following quotation:

“Under [the government’s] view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus [the government] would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.”

When discussing this case, it is important to remember that the question before the Court had very little to do with whether or not increasing the availability of birth control might be desirable.  Rather, the holding focused on whether or not the contraception mandate violated a boundary congress imposed on itself through RFRA.  The majority opinion also noted that other types of medical procedures, like immunization, might fare differently under the least restrictive means test.

The dissent, termed “respectful and powerful” by Justice Kennedy, arrived at the opposite conclusion.  Justice Ginsburg, writing for the four dissenting Justices, began by pointing out that contraception is necessary for women to participate fully in the economic life of the nation. The dissent further noted that Congress explicitly rejected a “conscience amendment” to the ACA which would have granted objecting businesses the right to opt out of the contraception mandate.

The dissent then argued that corporations cannot exercise religion.  The dissent grounded its reasoning in the body of legal precedent that separates corporations from their owners, concluding that corporations themselves do not have consciences or religious scruples which can be violated by compliance with the contraception mandate.

The dissent squarely addressed the majority’s argument that the government could simply pay for contraception rather than requiring employers to provide it.  The dissent reasoned that the added complexity of learning about, and signing up for, this new government benefit would prevent many people from using it, thereby harming the government purpose of providing contraceptive coverage to as many people as practical.  The dissent cited a previous landmark case wherein the Court held that requiring a member of the Old Order Amish to pay social security taxes on his employee’s wages was not unduly burdensome, and was justified by the need for a nationwide, comprehensive insurance system.

The full text of the opinion is available here:  http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

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