With over 70 lawsuits challenging the contraception benefit in the Affordable Care Act and conservatives sensing a sympathetic majority on the Roberts Court, it was all but given the Supreme Court would enter into the debate over whether for-profit corporations have religious exercise rights. On Tuesday, the Roberts Court made it official, granting review in two for-profit challenges to the birth control benefit, the Hobby Lobby case and the Conestoga Wood Specialties Corporation case. Each lawsuit challenges the requirement that certain employers provide health insurance plans that cover contraception at no additional cost, but with federal courts coming to opposite conclusions.
By taking these two cases together, the Court will take a broad look at the issue of corporate religious rights, specifically taking up the questions of whether a for-profit corporation is a “person” capable of exercising religion under the Religious Freedom Restoration Act (RFRA), whether the birth control coverage benefit substantially burdens religious exercise, and if so, whether the benefit is justified by compelling government interests and whether the benefit is the least restrictive means of furthering those interests. Finally, and perhaps most troubling, the Supreme Court will consider whether the benefit violates the Free Exercise Clause of the First Amendment. There are a range of ways the Court could rule in answering these questions, including a narrow reading under the RFRA that corporations are not “people” and cannot assert religious exercise claims to an expansive decision that embraces the idea that not only do corporations have political speech rights under the First Amendment, they also have religious exercise rights as well.
The Conflicting Cases
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In Hobby Lobby, a divided Tenth Circuit Court of Appeals, in six separate opinions, ruled that some secular, for-profit corporations are “persons” that can have and exercise their own religious beliefs. On the specific question of for-profit corporations as religious persons, the court split five to three, with the majority holding that corporations, if they are owned by religiously devout individuals who also control the company’s business dealings, are protected by the RFRA. The ruling did not go so far as to grant First Amendment rights to those businesses, but the opinion borrows heavily from that constitutional analysis to justify finding that the business can persue an RFRA claim. According to the majority, a corporation can absorb, as its own, the religious views of its owners which then makes it possible to conduct its business in a way that serves as an expression of those religious beliefs.
But in Conestoga Wood Specialties, a panel of Third Circuit judges directly disagreed with the court in Hobby Lobby and ruled that “for-profit, secular corporations cannot engage in religious exercise” even if they are operated by religiously devout owners. In that case, the owners had made claims challenging the mandate under both the RFRA and the First Amendment, an issue the opinion takes on directly. In it, the majority concluded that the First Amendment right to exercise a religious belief is a “personal right” that exists for the benefit of actual human beings and not for artificial, legally-constructed “persons” like corporations.
According to the court, religious beliefs and devotions form in the “minds and hearts of individuals,” something inherently impossible for corporate persons. “We do not see how a for-profit, ‘artificial being, invisible, intangible, and existing only in contemplation of law,’ that was created to make money could exercise such an inherently ‘human’ right,” said the court. The Conestoga court goes even further, ruling that owners of for-profit, secular businesses cannot “pass through” to their corporations their personal religious beliefs, in direct disagreement with the Hobby Lobby court.
What’s at Stake?
A lot. For one, there’s the practical reality of what providing contraception coverage means for women in the United States. “The contraceptive coverage benefit is a huge step forward for women. Requiring coverage with no co-pays removes a serious financial barrier that many women have faced,” said Marcia D. Greenberger, co-president of the National Women’s Law Center (NWLC), on a press call Tuesday afternoon. The NWLC has filed amicus briefs in many of the lawsuits challenging the contraception benefit. “Birth control is a critically important part of women’s health care, but its cost, including co-pays, can be an impediment to a woman’s consistent use of it or to her ability to use the safest method for her. This benefit removes this financial barrier to women getting and affording the birth control they need.”
Whether or not a majority of justices on the Supreme Court find the economic benefit and prohibitions against gender discrimination in coverage compelling, however, remains to be seen. “If the Supreme Court decides for bosses rather than for women’s health, far-reaching consequences could result,” Greenberger said. “Women could find their bosses not only interfering in their private reproductive health-care decisions, but other care as well.”
From a purely legal vantage point, the issue of whether it is possible for a corporation to “take on” the religious beliefs of its owners as a matter of constitutional principle is the big issue for the Roberts Court and the dangerous, yet somehow natural, evolution of its Citizens United legacy. According to the majority in Conestoga, the basic nature of, and entire legal purpose for, a corporation is to have its own independent identity, rights, powers, and obligations, a truth so basic it was unable to find a single decision that recognized a business engaged in its routine affairs—such as offering employees health insurance coverage—that was also an expression of faith. Yet in Hobby Lobby, the Tenth Circuit specifically borrowed the logic of Citizens United to reason that if the First Amendment protects corporate political donations as speech, surely it would protect denying contraception coverage as religious exercise.
It’s a line of reasoning that misreads both the First Amendment and corporate law in addition to being intentionally deceptive in scope. Cecile Richards, president of the Planned Parenthood Federation of America, noted on the press call that the arguments made by conservatives don’t stop with contraception. “If the Supreme Court rules in favor of the corporations, the ruling will open the door to businesses denying coverage, based on their owners’ personal beliefs, for a whole host of other medical procedures to which their employees are entitled—procedures and treatments like vaccines, surgeries, blood transfusions, or mental health care.”
We’ve already seen conservatives advance similar arguments to try and gut the proposed Employment Non-Discrimination Act by arguing for “religious exemptions” that broadly cover any employer, further reinforcing these arguments were never intended to be limited to contraception coverage in the first place.
It’s important to note then whenever a court looks at claims involving regulation of First Amendment rights, the court is really looking at striking a balance between the rights of its citizens—the rights of some to exercise religious beliefs and the rights of others to be free from compelled religious expression. In the case the birth control benefit, the real question is whether the Roberts Court is willing to invent a host of new constitutional rights for secular for-profit corporations and then find those rights outweigh the rights of employees. Because, let’s be clear, the fight over the contraception mandate is not about sincerely held religious beliefs; it is about an opportunity to further contort the Constitution to create new corporate rights and liability protections. Nancy Northup, president and CEO of the Center for Reproductive Rights, summed it up like this: “The right to religious freedom belongs to individuals, not for-profit institutions. Our fundamental individual liberties must be protected so that these for-profit companies are no more entitled to deny women insurance coverage for essential health care than they are to dictate how any of us can and cannot spend our paychecks.”
The Supreme Court did not release a schedule for arguments, but presumably will hear them in March, since the Court’s February schedule was just released and these cases were not expedited.