Crying Wolf on Religious Liberty


This week, the owners of two secular, for-profit corporations will ask the Supreme Court to take a radical turn and allow them to impose their religious views on their employees — by refusing to permit them contraceptive coverage as required under the Affordable Care Act.

The Supreme Court has consistently resisted claims for religious exemptions from laws that are neutral and apply broadly when the exemptions would significantly harm other people, as this one would. To approve it would flout the First Amendment, which forbids government from favoring one religion over another — or over nonbelievers.

The showdown will take place Tuesday when the Supreme Court hears arguments on two consolidated challenges to the Affordable Care Act. The owners of Hobby Lobby, a chain of arts-and-crafts stores, and Conestoga Wood Specialties, a cabinetmaker, want to be exempted from the sound requirement that employer health plans cover without a co-payment all birth control methods and services approved by the Food and Drug Administration.

These companies are not religious organizations, nor are they affiliated with religious organizations. But the owners say they are victims of an assault on religious liberty because they personally disapprove of certain contraceptives. They are wrong, and the Supreme Court’s task is to issue a decisive ruling saying so. The real threat to religious liberty comes from the owners trying to impose their religious beliefs on thousands of employees.

The legal question is whether the contraception coverage rule violates the Religious Freedom Restoration Act of 1993, which says government may not “substantially burden a person’s free exercise of religion” unless the burden is necessary to further a “compelling government interest” and does so by “the least restrictive means.”

There are several reasons why the court should find that the law does not apply, starting with the fact that secular, for-profit corporations are not “persons” capable of prayer or other religious behavior, which is a quintessentially human activity. Also, as an amicus brief filed by corporate law scholars persuasively argues, granting the religious exemption to the owners would mean allowing shareholders to pass their religious values to the corporation. The fundamental principle of corporate law is a corporation’s existence as a legal entity with rights and obligations separate from those of its shareholders.

The claim that the contraception coverage rules put a “substantial burden” on religious exercise is very weak. The companies’ owners remain free to worship as they choose and to argue (incorrectly) as much as they want that some of the contraceptive drugs and devices on the F.D.A.’s list actually induce abortions. If an employee decides to use an insurance plan for such contraceptives, that would be a personal decision. It does not burden religious exercise.

Finally, as Marty Lederman, a Georgetown University Law Center professor, has emphasized on the legal blog Balkinization, employers are not actually required to offer employee health plans. They could instead pay a tax to help support the government subsidies that are available to those using a health insurance exchange.

Under the Religious Freedom Restoration Act, the government plainly has a “compelling” interest in reducing the number of unintended pregnancies and abortions, and in furthering women’s health and equality. Accommodations have been granted to religious entities, and broad participation is the “least restrictive” way to carry out a complex national health reform. The argument that the mandate cannot be that important because most women already use contraception misses these facts: that birth control methods vary in effectiveness, that cost is a major factor in deterring women from choosing a more reliable method, and that access to affordable contraception advances gender equality.

If there is a Supreme Court decision in favor of these businesses, the ripple effect could be enormous. One immediate result would be to encourage other companies to seek exemptions from other health care needs, like blood transfusions, psychiatric care, vaccinations or anesthesia. It could also encourage toxic measures like the one vetoed last month by Gov. Jan Brewer of Arizona that would have given businesses and individuals a broad right to deny services to same-sex couples in the name of religion. The Supreme Court cannot go there.