In Burwell v. Hobby Lobby Stores, 573 U.S. ___ ( 2014 ), the United States Supreme Court ruled that the federal government could not require the religious owners of a closely held for-profit corporation to include contraceptive services as part of the healthcare package they offered to employees. By a 5–4 vote, the Court held that at least some corporations were persons under federal statutory and constitutional law, and that under the Religious Freedom Restoration Act of 1993 the federal government had to demonstrate a compelling interest in requiring certain corporations to provide benefits to employees that violated their religious beliefs. The decision was a victory for both conservative Christians and opponents of the Barack Obama administration's healthcare initiatives, but the precise impact of the ruling on women's health care remains uncertain.
Hobby Lobby is a closely held for-profit corporation that employs approximately 13,000 persons. The company is termed “closely held” because more than half of its stock is owned by five persons or less, the owners being David Green, Barbara Green, and their three children. The Greens insist that they had a right to an exemption to the contraceptive mandate under the Religious Freedom Restoration Act. That law requires the federal government to exempt religious believers from laws that burden their religious practices unless compelling reasons exist for requiring them to obey the law; and in the Greens' opinion facilitating access to contraception violates their religious beliefs. Other religious owners of closely held forprofit corporations made similar claims. The Court of Appeals for the Third Circuit ruled that for-profit corporations could not claim exemptions under either the Constitution or federal law because corporations were incapable of having religious beliefs. The Court of Appeals for the Tenth Circuit disagreed. When adjudicating Hobby Lobby's case, the circuit court majority ruled that certain businesses could be considered persons under federal law, hence the Greens were entitled to an exemption from the contraception mandate. The Supreme Court decided to adjudicate the case to resolve the split between the two circuits.
Justice Alito acknowledged that the federal government had a compelling interest in ensuring that women had access to contraceptive services. Nevertheless, he insisted, “the contraceptive mandate is [not] the least restrictive means of furthering that compelling government interest.” In particular, Alito maintained that government could always independently provide free contraceptive coverage when employers had religious objections to covering contraception.
Justice Anthony Kennedy's concurring opinion emphasized that the Hobby Lobby decision would have little impact. He noted that the federal government already provided a means by which women who worked for religious institutions could obtain contraceptive services. All the federal government had to do, Kennedy suggested, was adopt the same policy used to cover women who worked directly for the Catholic church to women who worked for Hobby Lobby.
Justice Ruth Bader Ginsburg's dissent insisted that this was “a decision of startling breadth.” In her view, only actual persons and religious organizations had the right to the free exercise of religion. Commercial enterprises were not religious organizations and hence could not claim to have religious beliefs. Ginsburg wrote: “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs … constantly escapes the Court' s attention.” Moreover, she pointed out, the mere providing of contra ceptive services did not require the Greens to violate their religious beliefs. “It will be the woman' s autonomous choice,” Ginsburg declared.
The precise impact of Hobby Lobby was immediately muddied the day after that decision came down, when the Supreme Court issued an injunction in Wheaton College v. Burwell ( 2014 ) forbidding the federal government from requiring a religious college to fill out the forms necessary to have an insurer pay for contraceptive services. Justice Alito had seemingly pointed to this procedure in his Hobby Lobby opinion as one means by which women could obtain contraceptive services when religious employers were exempted from the contraceptive mandate. Justice Sonia Sotomayor' s dissent from that injunction asked: “If the Government cannot require organizations to attest to their views by way of a simple self-certification form and notify their third-party administrators of their claimed exemption, how can it ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work?” Hobby Lobby broke new ground for religious free-dom issues. Previous free exercise cases had involved conflicts between religious believers and government interests. Persons who had religious reasons for ingesting banned substances, for example, were violating laws against drug use but were not directly threatening other rights. By comparison, Hobby Lobby claimed and the Supreme Court majority accepted that religious persons might have free exercise rights to deny other persons their statutory rights, such as their statutory right to have a health insurance plan that covered contraception. Both the corporate entities that will be exempt from contraceptive coverage and the extent to which free exercise rights will trump other individual rights are for the future to determine.
SEE ALSO Freedom of Religion: Free Exercise .
Gillman, Howard, Mark A. Graber, and Keith E. Whittington. American Constitutionalism: Powers, Rights, and Liberties. New York: Oxford University Press, 2013.
Robinson, Zoe, Chad Flanders, and Micah Schwartzman, eds. The Rise of Corporate Religious Liberty. New York: Oxford University Press, 2015.
United States Conference of Catholic Bishops. Press release, February 10, 2012. http://www.usccb.org/news/2012/12026.cfm .
Mark A. Graber
University of Maryland Carey School of Law