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Religious Freedom Rifts
The Most Important Supreme Court Decision This Term

Next week the Supreme Court is set to hear arguments in what might be the splashiest case of this term. It will hear two challenges to the Affordable Care Act’s requirement that employers include free contraception in the health insurance packages they offer to their employees. TPM lays out the background:

The first case the court will take up is Sebelius v. Hobby Lobby Stores, Inc. The second is Sebelius v. Conestoga Wood Specialties Corp. The Supreme Court consolidated the cases and allotted a total of one hour for oral arguments on Tuesday morning.

Both are for-profit companies. Hobby Lobby is a Oklahoma-based arts and crafts retail chain with Christian owners so devout that the stores close on Sundays. Conestoga Wood is a Pennsylvania-based manufacturer of wood doors and other furniture. Both sued to block the mandate to cover contraceptives like Plan B and Ella, saying it violates their religious liberty.

This case will be as big in its own way as the recent cases over gay marriage—bigger even, because many people who aren’t particularly exercised by the contraceptive mandate would be more than happy to see the ACA dealt a blow by the Court. The decision will likely hinge on the Court’s understanding of the Religious Freedom Restoration Act. RFRA permits government infringements on religious liberty only when those infringements are the least restrictive way to achieve a compelling state interest. RFRA was in the background of the controversy over Arizona’s religious freedom bill, which would have allowed vendors with religious objections to refuse, for instance, to provide services at gay weddings. So the Court’s ruling will be relevant to several ongoing debates.

TPM’s piece suggests that supporters of the contraception mandate should be concerned that the Supreme Court won’t rule in their favor. But the lower courts were divided on the question of whether for-profit companies should be exempt from the mandate, and RFRA was originally passed in response to a Supreme Court that had often ruled to restrict religious freedom. This could still be anyone’s game.

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  • Thirdsyphon

    Regardless of what the Supreme Court decides, the real-world impact of this ruling will be fairly minimal. There’s no “silent majority” of employers waiting to seize control of their employees’ reproductive health.

    That being said, the idea that a for-profit corporation can be a “person” with religious beliefs is simply laughable. “Corporate personhood” is a helpful legal fiction that’s been pushed far beyond its original intent. If the corporations win here, there’ll be a case about corporate baptisms next.

    • Enemy Leopard

      I have no interest in debating the idea of corporate personhood here, but it’s worth pointing out that there are important distinctions in the types of corporations out there. Publicly traded corporations are different from privately owned ones, privately owned corporations with a variety of owners are (perhaps not in a legal sense, but practically speaking) different from family owned ones, and so forth.

      It’s also worth mentioning that the case may depend on the technical issue of incorporation. That is to say, the decision may be different if Hobby Lobby were, say, a partnership instead of a corporation. But the philosophical issues run deeper than that. Many people argue that, once a person engages in any sort of economic activity, the free exercise clause no longer applies. See, for example, the recent cases involving bakeries, photographers, and gay weddings.

      • Thirdsyphon

        The philosophical differences may run deeper, but they’re all of a piece. To the extent that a natural or legal person engages in economic activity, its right to the free exercise of religion in that sphere is going to be limited.

        The Catholic Church, for example, is free to discriminate against women, married men, and non-Catholics when choosing priests and bishops; but the trust through which the Church owns vast tracts of Manhattan real estate is not free to discriminate against those same groups when deciding who to rent apartments to. As far as I know, this has never been alleged by anyone to constitute an infringement on the Church’s free exercise of religion, or construed as an endorsement by the Church of the lifestyles and/or religious beliefs of the tenants who rent its apartments. Why would it be? For most of us, the distinction between religion and business is self-evident.

        In fact, for most of us, the distinction between business and our personal lives in general is pretty much self-evident. It would never occur to anybody to think that a Muslim taxi driver who drops someone off at a bar (or a Mormon driver who drops someone off at a Starbucks, or a Christian Scientist driver who drops someone off at a hospital) is endorsing their passenger’s conduct in violation of their own religious beliefs

  • Corlyss

    I’ll bet Roberts is beavering away to figure out some arcane reason for siding with Obama so he won’t look “confrontational.” Where’s Marshall and Taney when you really need ’em?

    I’m beginning to think that moral courage has virtually disappeared from the American political landscape. There’s no adults in the system any more.

  • lhfry

    Religious liberty must give way to sexual liberty (libertinism). That is the most important goal of the left. The Catholic Church opposes all of the left’s attempts to advance the sexual revolution of the 60s – freely available abortion, no fault divorce, same sex marriage and therefore it must be stopped. The contraceptive mandate was added to the ACA specifically to force the Catholic church to conform. We’ll see what the Court does.


  • qet

    The issue in the cases proper is a narrow one and ought not to upset any but the most refractory pro-choicer. Instead, what is happening here is that the progressives are reacting exactly like their limited-government counterparts on the other side usually react, to the “slippery slope” visible here. The two companies’ owners object not to “women’s reproductive health” nor to the provision in their sponsored health plans of contraceptives. What they object to is the requirement to provide a particular class of mis-named contraceptives that in fact tend to operate as abortifacients. Eliminating these so-called “emergency contraceptives” from the scope of coverage would not in any practically meaningful way limit a woman’s ability to choose to avoid pregnancy (and let’s not get sidetracked by the “rape, incest, abuse” tripod which can always be managed separately as an exception to the general rule which is the matter at hand). Yes, it would in all probability result in a non-zero number of unwanted pregnancies which would be either aborted in the old-fashioned way or carried to term, but that effect on a marginal number of individual women does not alter the character of the prohibition on “women” as a whole. What the progressives object to is just what the NRA objects to: the principle that another can limit how I choose to exercise my constitutional right. The right wants the left not to see this case as a predicate for further restriction just as the left wants the right not to see things like gun registries and waiting periods as predicates for further restriction.

    I know people will say they are aware of all this but it gets short shrift in most media accounts of the case.

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