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The most intensely debated field of law right now is the right of freedom of religion in the business community.  The debates have been in the forefront of the news, as the Hobby Lobby case came before the United States Supreme Court.

On March 25, 2014, the Supreme Court heard the case of Sebelius v. Hobby Lobby Stores, Inc., putting the Affordable Care Act back at the Court for another constitutional challenge.  The case presented “an issue of first impression,” an issue on which all sides agree that there is no controlling precedent: Can a private, for profit business assert a freedom of religion claim, and if so, can the Federal government require it to act contrary to those religious beliefs?

The case concerns Hobby Lobby, a craft store chain closely owned by the Green Family, who operate the business “according to a set of Christian principles.” One aspect of their faith is the committed belief that human life begins at conception. As such, the owners all agree that it is immoral to facilitate the destruction of a human embryo.

The Patient Protection and Affordable Care Act (commonly called “Obamacare”) requires companies that employ more than 50 persons to provide health coverage for their employees. Hobby Lobby has 13,000 employees, and so it is subject to the requirement.

The health care coverage mandated by the Affordable Care Act requires there to be insurance for 20 different means of birth control. The owners of Hobby Lobby agreed to provide insurance coverage for 16 of the 20 means of birth control, but objected to those means that are effective after conception, such as the IUD and Plan B.

Hobby Lobby filed suit in the United States District Court for the Western District of Oklahoma, seeking a court ruling that the law a violation of its right to the Free Exercise of Religion under the First Amendment of the United States Constitution and the Religious Freedom Restoration Act.  RFRA was enacted by Congress in 1993 to expand freedom of religion from a constitutional right of worship and conscience, to a statutory right to act in accordance with religious beliefs in your daily life.

The case arrived for arguments at the Supreme Court with the anticipation and atmosphere of a heavyweight championship fight.  The Court allowed extended time for arguments, the courtroom was packed with interested observers, and demonstrators outside shouted for their respective positions.

Paul Clement argued first for Hobby Lobby, and was all of 42 words into his argument when the fireworks began.  Justice Sotomayor broke in with a question that went right to the heart of the issue: “Is your claim limited to… contraceptives or does it include items like blood transfusion, vaccines … products made of pork? … Could an employer preclude the use of those items as well?”

As soon as Mr. Clement had answered that question, Judge Kagan quickly followed up: “So one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform.”

Justices Ginsburg, Sotomayor, and Kagan maintained a steady stream of questions that focused on the right of the employees to exercise their own judgment concerning their own health care, and particularly the ability to women to make birth control decisions.  “But Congress has made a judgment” noted Justice Kagan, “and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage.  And when the employer says, no, I don’t want to give that, that  woman is quite directly, quite tangibly harmed.”

One of the most interesting aspects of Supreme Court arguments (whether to be there in person or to listen to the audio recordings) is to hear the justices debate with one another through their questions to the attorneys.  As Justices Ginsburg, Sotomayor, and Kagan pressed their “parade of horribles” (in the words of Mr. Clement) of what benefits religious minded employers could opt out of, Justice Alito broke in with a question suggesting some impatience with this line of argument.  “In all the years since (the Religious Freedom Restoration Act) has been on the books, has any of these claims… been brought and have any of them succeeded?”   In other words: suggestions that religious-minded employers will refuse to provide their employees vaccinations or blood transfusions is a diversion.  Maybe an individual employer may choose for himself or herself not to have a vaccine for religious reasons, but there is nothing in their religion about someone else getting a vaccine.  This case is here because the owners of Hobby Lobby believe that the government is forcing them to pay for what they consider to be an abortion.

When, during the arguments, a statement was made that that there is no law requiring a for-profit corporation to provide abortions, Chief Justice Roberts came back hard: “Isn’t that what we are talking about in terms of their religious beliefs?  One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions.  I thought that’s what we had before us?”

Just as Mr. Clement faced an immediate barrage of questions from those justices often considered more liberal, Solicitor General Donald Verrilli, arguing for the government, was likewise less than one minute into his argument when faced with questions from those justices often considered more conservative.

Justice Alito asked whether there was something about being for-profit that is inconsistent with a freedom of religion claim.  Justice Scalia stated that “not one single case says that a for-profit enterprise cannot make a freedom of religion claim.”  Chief Justice Roberts noted that a corporation can bring a race discrimination case, and if a corporation can (for the legal purposes) have the race of its owners, then why cannot it not have the religion of its owners?

Even Justice Breyer, often considered in the more liberal wing of the Court, seemed to indicate that a for-profit enterprise had the right to a freedom of religion claim: “What you are saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up … the Freedom of Exercise Clause that you’d otherwise have.  I don’t think it matters whether they call themselves a corporation or whether they call themselves individuals.”

The argument had its moments of levity and even humor.  At one point, Mr. Clement was stressing the point that Hobby Lobby faced severe penalties if it did not provide the full coverage of contraceptive coverage mandated by the statute.  Justice Sotomayor interjected that any payment by Hobby Lobby would not be a “penalty” but a “tax” – referring to the famous distinction made by Chief Justice Roberts in his recent opinion holding the Affordable Care Act to be constitutional as a tax; and Roberts quickly added: “She’s right about that.”  The courtroom broke up in laughter.

Anticipating a decision based the argument is like reading tea leaves, but a line of questions by Justice Kennedy may foreshadow the ultimate outcome.

Justice Kennedy was particularly concerned that the Department of Health & Human Services has the authority to grant “exemptions” to non-profit organizations, but not those that are for-profit.  He asked “What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”

Solicitor General Verrilli replied “It didn’t grant an exemption to any nonreligious organizations, Justice Kenney … it constructed an accommodation … that delivers the contraceptive coverage to the employees [but the company does not have to pay for it].”  When asked, Mr. Clement seemed to indicate that Hobby Lobby would accept such an “accommodation.”

It is possible that this exchange could foreshadow the result: that religious freedom rights are recognized for-profit organizations, that Hobby Lobby cannot be compelled to pay for contraceptive coverage it considers to be abortion, but that “an accommodation” such as was offered to non-profit organizations must be offered to religious objectors generally.

A decision on the case is expected by June.

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