Victorian postcard

Will Scotus let religious freedom trump gender equity?

Victorian postcard

Victorian postcard

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.