The Christian Right’s campaign to redefine religious liberty has picked up steam in recent years and PRA has been closely tracking its progress through legislatures, legal strategy groups, op-eds, and the courts.
In March, the Supreme Court heard arguments in Sebelius v. Hobby Lobby Stores, Inc., which was combined with Conestoga Wood Specialties Corp. v. Sebelius. No matter how the cases are decided, they may well be two of the most pivotal Supreme Court rulings of our time.
The plaintiffs claim that the contraception provisions of the Affordable Care Act (ACA) violate the religious freedom of the large craft-store chain and a Christian bookstore chain, which are both owned by an evangelical Christian family. In the related Conestoga case, an Amish family-owned manufacturer of cabinets makes the same claim. The ACA, a.k.a. Obamacare, requires that female employees be provided with health insurance that includes no-cost access to 20 forms of birth control, including emergency contraception (the “morning after” pill) and intrauterine devices (IUD). But the case is more about abortion than the ACA itself. Because the “morning after” pill and the IUD may prevent fertilized eggs from implanting in a woman’s uterus, anti-choice groups have claimed they are abortifacients, and argue that religious employers are being forced to be complicit in the funding of abortion. Their false labeling of the contraceptives have been highlighted by both the American Congress of Obstetricians and Gynecologists and the American Medical Association, which have publicly stated that these are not abortifacients, and note that actual abortifacients—such as RU486—are not covered under the ACA. It should also be noted that these companies’ current health plans already cover contraceptives, minus the four they are attacking, thus the case is not now, and never has been, about contraception per se.
Legal experts offer three main scenarios for a Supreme Court ruling. However, no matter how the Court decides, the implications extend far beyond the legal realm.
If the Court rules for Hobby Lobby
Beyond the detrimental impact on women’s health, a ruling for the plaintiffs would establish a new and dramatic precedent that private for-profit corporations can claim religious exemptions from federal law. A limited exemption to labor law was allowed a few years ago in the case of Hosanna v. Tabor, in which a non-profit religious school denied a teacher’s disability claim under the Americans with Disabilities Act because the church defined her work as a “ministry” of the church.
How various groups, including corporations, define ministry will likely be a major issue in post-Hobby Lobby litigation. Can a corporation really be considered a ministry? As some justices noted during oral arguments at SCOTUS, if Hobby Lobby wins religious exemption for coverage of certain contraceptives, then what’s to stop other companies from denying coverage for other medical and non-medical services deemed objectionable? Justice Kennedy, considered to be the key swing vote, also wondered about the religious rights of employees who may not agree with their employers’ religious beliefs.
A ruling granting religious liberty benefits to private business would immediately extend to other areas of discrimination as well, opening the door for businesses to force an employee to live by the religious tenets of whatever their employer happens to believe—despite the employee’s personal beliefs—leaving them vulnerable to job-loss and potential financial ruin for reasons unrelated to their job performance.
If the Court rules against Hobby Lobby
Rulings against Hobby Lobby and Conestoga could trigger political backlash on the Religious Right, which asserts that government is deceiving Christians into paying for abortions. Conservative evangelicals and the Catholic Bishops are not kidding when they say they are drawing a line in the sand on this, as they challenge not only contraceptive coverage but also what they perceive to be broader government control over their institutions. Religious Right leaders have adopted increasingly conservative anti-government positions, angered by the various alleged encroachments on religious freedom: civil rights laws and their effects on the federal tax-exempt status (such as the Bob Jones University case); by the requirement that colleges receiving federal funds adhere to the equal treatment of women under Title IX of the Civil Rights Act (Grove City College); and, most recently, by the Windsor decision that partly overturned the Defense of Marriage Act. Mat Staver of Liberty Counsel, for example, has been busy claiming in conservative media outlets that Windsor is coercing Christians into accepting the legitimacy of gay marriage.
If the Court finds a compromise
Some have speculated that the Court may decide the case narrowly, holding that policies of family-owned companies constitute an extension and expression of an owner’s religious faith and thus allow for certain limited exemptions to the ACA. Such a decision, however, could invite litigation on the breadth and depth of corporate personhood under the First Amendment. If corporations have a First Amendment right to spend unlimited amounts of money in elections (as decided in the 2010 Citizens United decision and the 2014 McCutcheon decision), then opening the door to the notion that corporations of any kind have religious rights may invite litigation over proposed exemptions to federal laws, such as civil rights laws and labor laws.
As we await the Supreme Court’s decision, the Christian Right is pressing for religious exemptions through state legislatures. Some states—notably Virginia, Arizona, and Mississippi—are seeking to expand conscience clauses to deny women comprehensive reproductive health care, and justify discrimination against LGBTQ people and others. To learn more, download our groundbreaking report, Redefining Religious Liberty, and check back for regular updates.