REPORTfrom the Capital Supreme Court rules for Hobby Lobby Decision and later action in a nonprofit case spark responses The U.S. Supreme Court ruled June 30 that choose to opt-out of coverage they find objec- a for-profit arts-and-crafts store chain does tionable (nonprofits must notify their insurers not have to offer health insurance coverage of their religious objection, and the coverage for types of birth control that conflict with is provided directly by the insurance com- company owners’ religious beliefs, a decision pany or a third-party administrator). The that provoked swift political and legislative decision said the accommodation “constitutes responses. an alternative that achieves all of the Govern- The decision in Burwell v. Hobby Lobby ment’s aims while providing greater respect Stores, Inc. held that the 1993 Religious Free- for religious liberty.” dom Restoration Act (RFRA) — which sets a The religious nonprofit accommodation Magazine of the high bar for any federal law that restricts re- was the subject of a different lawsuit that Baptist Joint Committee ligious practice — applies to the closely held prompted Court action days later. In an for-profit business. It said the government order July 3, the Court temporarily granted could have found a way to achieve the goals evangelical Wheaton College the ability to Vol. 69 No. 7 of the so-called “contraceptive mandate” of opt-out of providing insurance coverage for the country’s health care law without im- contraception it finds objectionable without pinging on religious rights, which is a RFRA signing a form to do so. The college claimed requirement. that even signing the form (which instead July/August 2014 Lawyers for Hobby Lobby argued that provides for the coverage to be administered the health care law violated RFRA when it by a third party) would make it complicit in required the company and another owned the transaction. by a Mennonite family — Conestoga Wood That order drew a vehement objection of INSIDE: Specialties Corp. — to provide employees the Court’s three female justices. Justice Sonia q Hobby Lobby . 2-3 with insurance coverage for birth control Sotomayor, joined by Justices Ruth Bader the companies’ owners found contrary to Ginsburg and Elana Kagan, dissented from their Christian beliefs. RFRA created a legal the order, saying the accommodation already q BJC advocacy . 4 standard to ensure that government did not granted to religious nonprofits “is the least substantially burden the exercise of religion restrictive means of furthering the govern- without a compelling reason for doing so. ment’s compelling interests in public health q RLC Luncheon . 6-7 Known as “strict scrutiny” in constitutional and women’s well-being.” law terminology, it requires that the govern- The Court’s actions led to two adminis- ment satisfy a high burden of proof before tration responses in July. After a measure in q International . 8-9 infringing citizens’ rights. the U.S. Senate that would have reversed the The Court noted that its decision does Hobby Lobby ruling failed July 16, the Obama not involve publicly traded corporations, for administration said employers that intend to which the owners’ religious beliefs would be drop coverage for some or all forms of contra- Connect with the BJC difficult to discern. It also points out that even ception must notify employees of the change. though employers at the companies cannot Later, the administration said it is developing BJConline.org be forced to cover types of contraception an alternative plan for employees of certain that conflict with their religious beliefs, that charities, hospitals and colleges to receive BJConline.org/ should not be understood to necessarily mean insurance coverage of all FDA-approved Blog employers can refuse to cover any medical methods of birth control without having their procedure — such as immunizations — that objecting employers sign the form that allows conflicts with their personal religious beliefs. the coverage to be provided through other Facebook.com/ The Court said that the Department of means. Administration officials indicated to ReligiousLiberty Health and Human Services has given no media outlets that the new process will be reason why for-profit employers cannot be added as a second way for those nonprofit @BJContheHill extended the same accommodation made employers to opt out. available to religious nonprofits who can —Religion News Service with BJC Staff Reports REFLECTIONS Exploring Hobby Lobby’s narrow victory There is much to criticize in the U.S. Supreme government to accomplish that compelling interest Court’s opinion in the consolidated cases of Bur- under RFRA than the Affordable Care Act’s man- well v. Hobby Lobby Stores, Inc. and Conestoga Wood date. The Court ruled the accommodation that the J. Brent Walker Specialties Corp. v. Burwell. The five-member majority federal government had already given to religiously gave short shrift to the question of whether any bur- affiliated nonprofits could be provided here to both Executive Director den on the exercise of religion is “substantial” and protect the conscience of the owners and extend the ignored the real effects of the requested free exercise protection of the Affordable Care Act to third-party accommodation on the corporation’s employees employees. Although the Court entered a temporary desiring insurance coverage for contraception ser- injunction several days later preserving Wheaton vices. General Counsel Holly Hollman lays out our College’s argument against that form of accommo- concerns on page 3. dation, it strains credulity to believe that a majority The picture, however, is not as grim as some of the justices would not uphold its constitutionali- critics assert. This column will take a look at the ty. “For our part, definition used for the word “person” and highlight Finally, we can take some comfort in Justice the BJC will look a basis for a narrow reading of the decision that will Anthony Kennedy’s concurring opinion. Although askance at attempts discourage future attempts to expand the prec- he joined in the Court’s opinion — thus making a edential effect to other, perhaps more dubious, free thin majority of five — he took the time to write to amend RFRA. exercise accommodations. separately. Justice Kennedy emphasized the limited We have too much First, we should be sensitive to religious liberty nature of the Court’s opinion. He held up the impor- invested in it to issues in the secular marketplace, including some tance of the Court’s assumption that the Affordable allow one Court for-profit corporations. The Court previously en- Care Act “furthers a legitimate and compelling decision, for better tertained — but ultimately denied — free exercise interest in the health of female employees.” He also claims by an Orthodox Jewish clothing and home was more attentive than the majority opinion to the or worse, to prompt furnishings proprietor (Braunfeld v. Brown, 1961) and need to protect the rights of third parties. After not- an emasculation of a kosher market that was organized by a for-profit ing the importance of the accommodation of religion that very important corporation (Gallagher v. Crown Kosher Super Market in our religiously plural culture, he stated firmly statutory protection of Mass., Inc., 1961). Moreover, Title VII of the Civil that accommodation may not “unduly restrict other for religious Rights Acts of 1964 requires reasonable accommo- persons, such as employees, in protecting their own dation of religion in businesses with 15 or more interests, interests the law deems compelling.” Thus, liberty.” employees. The Religious Freedom Restoration Act the need for Justice Kennedy’s joinder as a fifth vote (RFRA), the law that was applied here, incorporates on any viable Court majority would likely temper a definition of “person” that includes “corpora- willy-nilly extensions of the holding in Hobby Lobby tions.” And, religious liberty principles are applied beyond the confines of its own terms. routinely to houses of worship and other religiously Despite this understanding of the case, several affiliated organizations that are often incorporated. ideas have been proffered to limit the effects ofHob - Thus, the Court correctly declined to summarily by Lobby. A bill that would prohibit employers from disqualify the secular marketplace in general — or denying contraception coverage has already failed for-profit corporations in particular — from enjoy- in the U.S. Senate. Others have suggested limiting ing religious liberty protection. Although one could the protections in RFRA to for-profit corporations reasonably argue against a corporate behemoth as with fewer than 15 employees (thus truly embracing large as Hobby Lobby (with 16,000 employees!), the spirit of a “mom and pop” exception). At least there should be some protection for closely held one scholar advocates amending RFRA to compel “mom and pop” businesses, even when conducted the courts to consider and make explicit findings on through the corporate fiction. the effect of an accommodation on third parties. July/August 2014 Second, although the majority ignored its own Responses to Hobby Lobby on the part of either Report from the Capital precedent that holds adverse effects of religious Congress or the administration are complicated accommodation on third parties can violate the First by the upcoming elections. Suffice it to say that Amendment’s Establishment Clause (Estate of Thorn- we should not rush to fix something until we fully ton v. Caldor, Inc., 1985), it did assume for purposes understand its ramifications. For our part, the BJC of argument that the government has a “compelling will look askance at attempts to amend RFRA. We state interest” in protecting the health, safety and have too much invested in it to allow one Court welfare of employees wishing to avail themselves of decision, for better or worse, to prompt an emascu- contraception coverage. The Court’s majority then lation of that very important statutory protection for 2 ruled, however, there was a less restrictive way for religious liberty.