Will Scotus let religious freedom trump gender equity?

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That’s the central question in Sibelius v. Hobby Lobby Stores, Inc., though you could hardly tell it from Tuesday’s oral argument. My guess is that the Court’s answer will be no. Here’s my reasoning.

It seems pretty clear that the justices are prepared to recognize that at least some for-profit corporations have a First Amendment right to religious free exercise — i.e. the right to go to court to seek relief from a law preventing them from conducting their affairs according to the religious beliefs of their proprietors. Justice Alito offered the example of a law like the one passed recently in Denmark prohibiting as inhumane methods of slaughtering animals used to render meat kosher and halal. Whatever outcome you favor, do you really want to deny a kosher or halal slaughterhouse its day in court? Scotus won’t.

So Hobby Lobby and its linked plaintiff, Conestoga Wood, pass the hurdle for achieving religious rights. They are then eligible to be judged under the Religious Freedom Restoration Act (RFRA), which says that a free exercise claim can only prevail when the plaintiff’s religious liberty has been “substantially burdened.” If it has, then it is necessary to show that the government does not have a compelling interest in imposing that burden. If the government does have such a compelling interest, then it must have imposed the burden by the least restrictive means.

“Substantial burden” has to be judged, in part anyway, by what’s in the mind of the believer, and in this case the believers believe that some of the contraceptive methods they are required to cover are abortifacients — that is, that they are being required to subsidize abortions. In the oral argument, Chief Justice Roberts brought up this belief, and plaintiffs’ lawyer Paul Clement drove it home in his final testimony. Because abortion is so huge an issue for many religious Americans, the Court will, I predict, find that Hobby Lobby and Conestoga Wood’s free exercise has indeed been substantially burdened.

That brings us to the question of whether the government has a compelling interest in the mandate, and here, I think, the government prevails. Contrary to what some of its opponents have suggested, Obamacare’s contraception mandate is nothing new under the American sun. It is simply an outgrowth of federal policy dating at least to 2000, when the Equal Economic Opportunity Commission ruled that Title VII of the Civil Rights Act, which prohibits discrimination in the workplace on the basis of race, gender, and religion, requires comprehensive employee health care plans to include contraceptive services for women. The reason is that if such services are not included, women will not be comprehensively covered — ergo, discriminated against.

No fewer than 28 states proceeded to include a contraception mandate in their insurance regulations, and federal courts have upheld the mandates against religious objections on Title VII grounds. The force of its equal-treatment argument will, in my judgment, lead the justices to sustain the federal government’s position that its mandate does indeed express a compelling state interest.

But they will not, I believe, sustain the government’s claim to advancing that interest by the least restrictive means. What Hobby Lobby and Conestoga Wood are asking for are exemptions from the contraception mandate, at least so far as the alleged abortifacients are concerned. That would put them, to that extent, on the same footing as churches and other purely religious institutions, which have been given a complete exemption from the mandate.

Meanwhile, religious non-profits — including universities like Notre Dame, which have many employees who do not belong to the religious body with which they are affiliated — merely receive an accommodation, under which the insurance company that administers their policy is required to cover the costs. In the words of Solicitor General Donald Verrilli, “[T]hat accommodation results in the employees receiving access to…the contraceptive coverage, so that doesn’t diminish the government’s compelling interest.” There would be something odd, if not perverse, in a ruling that gave greater religious scope to for-profit companies than to religious non-profits.

Indeed, Clement opened the door to this accommodationist approach in his opening presentation, and when Verrilli contended that this was done “for the first time at the podium,” Clement, in rebuttal, pointed to a place in his brief where the possibility of an such an accommodation was raised. Justices Breyer, Sotomayor, and (most importantly, as the probable swing vote in this case) Kennedy, all expressed particular interest in this approach.

So here’s my prediction. When the decision comes out in June, Hobby Lobby and Conestoga Wood will be given not an exemption to the contraception mandate but an accommodation comparable to what has been afforded to religious non-profits, under terms that define the nature and character of for-profit companies that can make free-exercise claims. Free exercise rights will thus be extended, but not at the expense of the government’s compelling interest in gender equity, which will be preserved via the requirement that the cost of contraceptive coverage be assumed by the insurers who administer the insurance plans of the qualifying companies.

You heard it here first.

  • Rolando Rodriguez

    “the right to go to court to seek relief from a law preventing them from conducting their affairs according to the religious beliefs of their proprietors”
    This is a for-profit business that buys from suppliers who do not treat their employees with any semblance of Christian care. If they wish to be exemplary, they should also be consistent in all of their business practices. They are rending their garments along the seams.
    Rolando, OFS.

  • Larry

    My guess is SCOTUS will simply find there is no such thing as corporate religious belief, but they may find some way to limit the contraception mandate in general application.

    The RFRA argument is complete nonsense. It stands the legislative intent and application of the law entirely on its head. The purpose of the RFRA was to provide protection to employees who would lack the resources and power to defend their free exercise of religion from their employers.

    Employers never needed a law to protect their ability to do something to employees. They possess coercive force as part of their relationship.

  • tony

    I want to write a book, now you must pay to publish my ideas otherwise you are violating my freedom speech, you hate me and are marginalizing everyone similar to me.

  • Larry

    Whaaaaa? I am sure that made more sense in your head than it does on the screen. That being said, if you have to resort to insane analogy, your point was probably bullcrap. 🙂

  • tony


    hhmmm…supreme court rules on the constitution…prof silk claims there are conflicting rights….”religious freedom”…whatever that is…and the long acknowledged, widely held POSITIVE right of “gender equity”…which is clearly stated in the bill of rights 1a…So I was illustrating the absurdity of it all…which is difficult to do with liberals (if you don’t believe in facts how can anything be absurd) …by taking the negative prohibition that the GOVT shall make no law that abridges freedom of speech and changing into to POSITIVE right requiring a PRIVATE individual to pay for my speech. I was thinking that while this situation is absurd it would illustrate the even greater absurdity of requiring a private individual to pay for someone else “gender equity”…which unlike speech is not even mentioned in the constitution. My mistake.

  • tony

    How do you know how their suppliers treat their employees? And how are you certain that they don’t use “ANY” Christian care. That is a terrible statement. How much time did you spend investigating their supplier’s human resource practices? Pope Francis teaches that slander is one of the worst sins. It is highly unlikely that their suppliers do not show “ANY” Christian care to their employees assuming their employees show up voluntarily. Is that what you found, these employees are physically coerced to work every day? Or did you just want to falsely claim that Hobby Lobby is a hypocrite without any investigation or evidence because it rationalizes your worldview and creates the right enemies?

  • tony

    The most applicable question, that you are ignoring, is whether a person doesn’t have a right to freely exercise their religious beliefs because they own or manage a business.

  • Larry

    Definitely sounded better in your head. You are incoherent. As I said before, if you had to resort to absurd analogy, you don’t have a valid point to make. Just flinging poo in a scattershot pattern.

    More to the actual point, if employers didn’t want the obligations that come from controlling the health care in this nation, they should not have put up so much resistance to notions of a single payer system.

    If you are in the insurance game, you are bound by government telling you exactly what to do. Its the nature of the beast. Insurance requires a heavily regulatory atmosphere to work effectively. The great thing about the ACA, is if you don’t like those rules, you can just drop out of it entirely. For Hobby Lobby, it would have cost less and been morally OK to drop their health insurance entirely than to dictate what benefits the employees may receive.

  • Larry

    No. If you are incorporated, you are not your business. Your business is a property interest and an entity different from your personal life. In order to maintain the benefits of incorporation, you have to keep that separation.

    You really have no clue what incorporation really means. This is why people like you keep pretending the owner = the corporation.

    Your religious beliefs have no bearing on the efforts to turn a profit outside of marketing strategies. They have no bearing on your responsibilities to your employees. There is no way you can exercise your religious beliefs in managing a for profit business without violating all sorts of anti-discrimination and labor laws.

  • Larry

    Because their suppliers are in China producing cheap goods for US markets. They are uniformly horrific to their employees. Its well documented among all US companies that deal with Chinese suppliers.

    Are you done playing dumb?

  • tony

    Gosh Larry you are sooo cool. Would those chinese workers prefer that HL didn’t purchase goods from their suppliers? You are apparently more convinced that the chinese workers are being treated unfairly than they are. I guess that is what happens when you are morally superior to everyone else.

  • tony

    you have to keep your personal life and corporation separate otherwise you loose the benefits of being a corporation????? What does that even mean? How could you combine a “life” and “legal structure”. They don’t even operate in the same sphere.

    So I assume you are against corporation taking actions to preserve the environment? (which is the liberal’s highest good, caring for god’s creation)

    Your view is that the government is your conscience.

  • tony

    Larry, you just aren’t that smart. You keep confusing opinions with feelings with facts with prejudices with rights with responsibilities with law. You are nothing more than a liberal fascists. HL offers insurance coverage that includes 17 contraceptives, thats not enough!~ It must offer the coverages that you think are right, even if it means terminating early pregnancies and violating conscience. That is tolerance!!!!!!! Liberals like you believe that the individual will is supreme even above the right to define for yourself when life begins. But the will of decent people who want to live their faith must be squashed.

    A decent person would just say: if employees are soo committed to having their employer pay for their contraception, they can simply find a new job. There are millions of firms that will. Unfortunately, there are very few decent people to be found. Having your employer purchase things for you is not a constitutional right. And in a world of ordered liberty, it certainly doesn’t superseded someone else’s right to live by their conscience.

  • Larry

    Yes. Its called “the corporate veil”. Your ignorance is duly noted. Look up the term some day.

    In exchange for protection of personal assets from corporate liabilities and taxation benefit, a corporation carries on existence separate and apart from its owner. This includes not using corporate assets and property for purely personal use and acting for the financial interests of the corporation. A corporate leadership position means owing a duty of care to the corporation, even if it does not coincide with personal interests.

    A corporation cannot have a religious belief. It is not an individual. The religious views of its owners must take a backseat to respecting the nature of the business entity as part of their duty of care. They reap the rewards it entails, they must honor the obligations as well.

    My view is that government that represents people must act on their behalf. If that means reining in people who use coercive force against their employees for personal aggrandizement, so be it.

    I believe in laws besides might makes right. You seem to be under the impression that if someone has enough money and a little bit of authority, they can do whatever they want to whomever they want.

  • Larry

    Tony, you are the worst kind of fool. One who thinks they are intelligent, but is not.

    Hobby Lobby feels the inordinate need to dictate to its employees what kind of contraceptive its employees can have. Why? Because the owner feels like it. Why should he have that authority? No reason whatsoever. Especially in light of nationwide changes to how insurance is handled in the workplaces. Its not a matter of conscience to dictate to others. Its being a bully.

    You throw the word fascist around, but it seems to apply better to someone who likes to use coercive force against people with no form of recourse to satisfy personal idiosyncracies.

    A decent person who had legitimate religious qualms about contraception would drop the insurance entirely. Pay the fines (which would be cheaper) and let the employees get their own insurance on the healthcare. marketplace. What we have instead is a political opportunist who wants to throw the term religious freedom around willy nilly. All so working class dolts would get behind the efforts to treat his employees like personal property.

  • Larry

    Given the low wages and abhorrent working conditions, probably not. They would probably love to form unions and be able to protest their wages and work conditions without running the risk of being shot.

    Of course if Hobby Lobby was really run with Christian moral integrity as their marketing claims, they would not seek suppliers in such places. But then again, why skimp on the profits?

  • samuel Johnston

    A corporation is not a person. Yet the Supreme Court has ruled that it has a right to free speech. As a result, a lot of folks, including me, are confused about the theory of corporations. Re: “…the court’s 2010 Citizens United ruling, in which the court decided that corporations have free speech rights. Supporters of the families behind Hobby Lobby and Conestoga have argued that surely other First Amendment rights extend to corporations as well.”
    I gather that a corporation now is not a merely artificial legal construct, (as I was taught in law school) but can have legally protected opinions, the same as a natural person. The law means what those nine guys and girls say it means, but It is not logical to a lot of us old timers, and I do not think it will stand.

  • Rolando Rodriguez

    “artificial legal construct”
    Excellent observation and comment. Thank you.

  • Larry

    Actually unlike Citizens United, corporate America is largely silent on corporate religious belief. They filed brief after brief for Citizens United. Not so here. They find it to undermine the purpose and inherent nature of the corporate veil.The corporate veil which protects shareholders and officers from personal liability and tax effects of the business.

    What most people don’t realize is corporate free speech existed before Citizens United. In law school you were taught that corporate speech is also protected by the 1st Amendment. Even advertising and public statements of a company. Even corporate political views were acknowledged long before that case. A corporation has vested interests in political situations from a profit-motive, regulatory, or taxation nature. None of which need ever to be associated with the shareholders’ personal interests.

    The 1st amendment arguments here are a sham. Nowhere can you find that a for profit corporation is an individual for religious rights. It makes no sense here. Religion has no discernible rational nexus point with the operations of a corporation. In fact it runs counter to the logical operations of a corporation because it invites sectarian discrimination into for profit-ventures. If Hobby Lobby were a more widely held company, its shareholders would be suing in a derivative lawsuit to remove Steve Green for wasting corporate resources for a purely personal and political matter at no benefit to the company..

    Hobby Lobby is purposefully treating a corporation, NOT as an individual but merely an extension of its owners. So even Citizens United would not apply here. Steve Green is incinerating the corporate veil and all notions of corporate personhood. There is no way corporate religious belief can exist without taking a massive dump on the notions of incorporation, property rights, labor laws and violating tons of anti-discrimination laws.

  • tony

    really …HL is following their employees to CVS and snatching money out of their hands as they try to pay for their contraceptives? You are a despicable human being. And eternity is a long time.

  • tony

    Offering insurance that covers 17 forms of contraceptive is “coercive force”?

    Is wasting money on environmental programs that do not benefit the corporation also meet the “standard of care”?

  • Larry

    “Offering insurance that covers 17 forms of contraceptive is “coercive force”? ”

    When there are many more available, yes. Especially when the reasons for withholding such coverage is for such irrational and personal reasons of the owner. An owner who considers his employees to be members of his religious faith by proxy (and by force).

    Your attempts to appeal to incredulity are running head-first into reality.

  • Larry

    You are unfamiliar with the costs of many female contraceptive devices such as IUD’s (between 1-2K in general) and therefore your argument is informed by such ignorance.

  • samuel Johnston

    Boy, this is really getting to be fun. On the face of it I see no merit in Hobby Lobby’s claim, which is based on its majority shareholder’s beliefs. “some of the contraceptive methods they are required to cover are abortifacients — that is, that they are being required to subsidize abortions.” I have visited the Hobby Lobby website, read their positions, and this line jumped out at me “A corporation’s expression is the expression of the people who work for it and lead it. ” It sounds to me like an admission that if you work for them you must hold the same views as management. This is outrageous. No one should be subject to this sort of serfdom. Can I be employed as legal council to Hobby Lobby corporation if I am an admitted atheist and a relativist? This is a very long way from the bill of rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;….”

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