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Program Note: So, today I wrapped up a two day trial, and so tomorrow I am treating myself to a day off. As a result, any blog post needs to come today, but due to this trial I really haven't been able to collect my thoughts on one. So, today's blog post will instead just be a little post I put together regarding tomorrow's anticipated Supreme Court ruling in Hobby Lobby v. Sebelius.
Introduction
Tomorrow, it seems the Supreme Court will release its decision in Hobby Lobby v. Sebelius, the challenge to the Obama administration's rule requiring health insurance to include contraception coverage, which has been challenged by religious business owners who believe the use of contraception is sin. Since they would be required to provide health insurance under the employer mandate, they argue this rule effectively requires them to fund something that violates their religious beliefs.
In this blog post, I will briefly explain what is at issue in this case, and why either side has reasons to be hopeful of victory.
Disclaimer: I am not neutral on this matter. I am a supporter of the Affordable Care Act (aka "Obamacare") and with it I support the contraception mandate. I believe it should be upheld. I try in posts like this to leave my personal biases out of it, but it is worth you understanding my position so you can add some skepticism to what I write.
This is Not a Constitutional Law Case
Most people I talk to about Hobby Lobby immediately assume this case is about the First Amendment, the Free Exercise clause. It actually is not. The constitution is not in any way at issue in Hobby Lobby. There's a reason for this - back in the early 1990's, a group of Native Americans challenged the banning of peyote as a controlled substance under federal and state law because Native Americans use peyote in religious rituals. The Supreme Court ruled that the law was constitutional, because it was not a law that actually targeted a religion - it was a rule of "general application" that was rationally related to a legitimate government interest (something called the "rational basis test").
The Congress reacted swiftly by passing the Religious Freedom Restoration Act (RFRA) which said that any law or rule of "general application" becomes invalid when applied to an individual if that law contradicts the individual's religion and the application of that law against the individual is not "narrowly tailored" to meet a "compelling government interest" (also known as the "strict scrutiny" test).
The purpose of the law was clear - most laws pass a rational basis test, but fail a strict scrutiny test, so
RFRA was designed to tip the scales in favor of the individual. Unfortunately for its supporters, RFRA did not have the far-reaching effect its authors desired. The Supreme Court later ruled that it was beyond Congress's authority to restrict state laws in the way RFRA did. Nonetheless, RFRA still stands as applicable to federal laws and regulations.
So, getting back to Hobby Lobby, the contraception mandate is clearly a government regulation of "general application." As a result, the issue in Hobby Lobby is not about the Constitution, but about RFRA. Specifically, Hobby Lobby and its supporters argue that RFRA applies, and as such strict scrutiny applies (which the mandate will likely fail), and so religious objectors should not have to include contraception in its employee health policies. The Obama administration argues that RFRA does not even apply to the mandate, and as such, rational basis review applies (which the mandate will likely pass).
Why the Obama Administration Might Win
Does a corporation have religious freedom? That's the question that underlies the Obama administration argument. Can a business, which is not a person, really have a religious belief? And if so, is that merely a reflection of the beliefs of its owners? The idea behind this argument is that our laws consider corporations as separate constructs from people. If a corporation, then, is its own entity, how can it have religious beliefs to be infringed? RFRA by its own language applies to people, not businesses.
An additional argument is that RFRA is a law, not a constitutional provision. As a result, Congress can make RFRA inapplicable to any law it wants, and Obamacare does include mention of contraceptive coverage.
Why Hobby Lobby Might Win
Does a religious person have a right to own a business without violating his religion? That question is at the heart of Hobby Lobby's argument. To them, businesses are a collection of individual owners, and while it may not be possible with a large corporation with millions of stockholders, small businesses, or businesses like Hobby Lobby which are large but still closely held (owned by only a few people) do inherit the religious beliefs of their owners. The argument, then, is that if RFRA does not apply to businesses, then religious people have no protections if they want to start a business.
Regarding the second argument of statutory revision - there is language in Obamacare about contraception, but it does not clearly overrule RFRA, which is usually what is necessary to make another law inapplicable.
Prediction
Predicting Supreme Court rulings is always dangerous, but I'll do it anyways. I predict that a 5-4 majority with the traditional conservative/liberal split will strike down the contraceptive mandate but only as it applies to businesses with a small number of owners and businesses specifically affiliated with religions. Publicly traded companies and companies which do not have a clear religious affiliation would still be required to abide by the mandate.
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