Hobby Lobby Attempts to Claim Corporate Religion

13139453903_d53e3532db_zCan a corporation pray?  Can it attend religious services?  Is it free to don religious garb?  In other words, can a corporation exercise religion?  All of those are questions raised by the Hobby Lobby case (Sebelius v. Hobby Lobby Stores, Inc., and the related case, Conestoga Wood Specialties Corp. v. Sebelius), likely to be decided by the U.S. Supreme Court in the coming days.  More specifically, the issue facing the Court is whether a for-profit corporation be exempt from the Affordable Care Act (also called ACA or Obamacare) requirement that all companies cover certain FDA-approved birth control methods and devices as part of the health insurance packages offered to their workers.

This essential question has been percolating in the federal appeals courts for some time and has resulted in what is referred to as a circuit split — three circuit courts have struck down the contraception coverage rule, while two others have upheld it.  This means the federal appeals courts (the highest in the land below the Supreme Court) don’t really know what to do with this aspect of the ACA and the Supreme Court should step in and clarify.

The featured challenger in this case, Hobby Lobby Stores, Inc., is a chain of arts and crafts stores owned by the Green family (devout Southern Baptists, apparently), the members of which have committed to run the company according to Christian religious principles.  Hobby Lobby doesn’t have a problem offering its employees insurance that covers most forms of birth control, it only objects to the coverage of drugs and/or devices that “end human life after conception.”  (More on the other challenger, Conestoga Wood Specialties, here.)

Hobby Lobby’s legal argument is that the Religious Freedom Restoration Act (RFRA) — a 1993 federal law that states, in pertinent part, that the government “shall not substantially burden a person’s exercise of religion” — provides it with an exemption to the contraceptive rule.  If Hobby Lobby is right, then the government can only override the exemption if it can demonstrate a compelling public interest for doing so.  As Pew helpfully explains, prior to the RFRA the government only had to demonstrate that a law that supposedly burdened one’s religious practices advanced a “legitimate” government interest.  This “legitimate interest” standard was articulated by the Supreme Court in Employment Division v. Smith, which backed away from the “compelling interest” standard that had previously been the law of the land.  Religious groups were up in arms after Smith, prompting Congress to step in and, via the RFRA, change the standard back to the more exacting “compelling interest.”

Crucially, the RFRA applies explicitly to persons and is silent on its application to for-profit corporations, such as Hobby Lobby.  So, in order for Hobby Lobby to invoke the RFRA in the first place, it must succeed in convincing the Court that it is covered by the RFRA, which is tantamount to arguing that a corporation can “exercise” religion.  One would be forgiven for scoffing at the suggestion, but according to recent Supreme Court precedent, the argument isn’t so far-fetched.  In its infamous Citizens United decision in 2010, for instance, the Court held that corporations and individuals shared the same First Amendment rights to political speech — i.e., the right to make unlimited political donations.  The very same First Amendment also protects an individual’s right to freely exercise his or her religion (under the so-called “Free Exercise” clause), so it’s not that much of a stretch to imagine the Court extending this aspect of the First Amendment to for-profit corporations, too.

Yet, even if the Court were to apply the RFRA to Hobby Lobby, the company would still need to show that the ACA’s contraceptive provision is a “substantial burden” on its religious freedom.  To accept that Hobby Lobby’s religious freedom is substantially burdened simply because it is required to provide its employees with health insurance plans that will cover certain forms of birth control, however, would appear to test the bounds of reason.  After all, Hobby Lobby is not forced to hand out IUDs and Plan B pills in its employees’ orientation packets.

The ostensible burden on Hobby Lobby’s religious freedom, rather, is really just a potentiality — the prospect that it may have to pay for something in which it does not believe.  In other words, it is entirely possible that no Hobby Lobby employee will ever seek coverage for the types of birth control with which the company takes issue, in which case the burden would remain theoretical.  Unless, of course, we’re really just talking about the philosophical burden on Hobby Lobby — the company is burdened simply by being subject to this particular provision of the ACA, which conflicts with its politics — in which case the Court’s response ought to be: too bad.  Hobby Lobby’s view on the morality of certain forms of birth control may ultimately prevail in the marketplace of ideas and be legislated as such, but for now, it hasn’t, and the company simply has to deal with it.

During oral argument in the Hobby Lobby case, the questioning eventually came to focus on the supposed abortive effects of the birth controls at issue.  Justice Kennedy closed his questioning by asking whether, in Solicitor General Donald Verilli’s view, a for-profit corporation could be compelled to pay for abortions.  Roberts clarified by asking: “Isn’t that what we are talking about in terms of their religious beliefs? That [Hobby Lobby and Conestoga] have to pay for these four methods of contraception that they believe provide abortions?”

The lead attorney for the challengers, Paul Clement, confirmed Chief Justice Roberts’ view that the case is, in fact, really about abortion.  Yet, if that is indeed true, then we ought to consider whether these specific methods of birth control really are so-called “abortifacients.”  According to the amicus brief filed by a number of medical groups led by the American College of Obstetricians and Gynecologists, however, “there is a scientific distinction between a contraceptive and an abortifacient and the scientific record demonstrates that none of the FDA-approved contraceptives covered by the [challenged] Mandate are abortifacients.”

What if Hobby Lobby wins anyway (a distinct possibility)?  Hobby Lobby’s political opponents warn that, if a for-profit can use religion to escape this particular federal law, it would open theflood gates to corporations claiming that they are not bound by others.  At oral argument, Justice Kagan gave voice to these concerns, recognizing that, were Hobby Lobby to prevail, private employers would then be allowed assert religious objections to gender discrimination laws, minimum wage laws, and family leave and child labor laws, all of which would be subject to what Kagan described as the “unbelievably high . . . compelling interest standard.”

A decision in Hobby Lobby is expected before the Court breaks for the summer (June 30), so be on the lookout.  As always, SCOTUSBlog is a great resource, as are anything by Jeffrey ToobinDahlia Lithwick, and Adam Liptak.  Stay tuned.

Image credit: Flickr/fanofretail

Michael Kourabas

Trained as a lawyer, I now focus on legal business development, corporate social responsibility (CSR), and business & human rights. My past experience includes work on complex commercial litigation, international human rights advocacy, education policy, pro bono legal representation, and analysis of CSR challenges in both the private and public sectors.