What the Hobby Lobby case says about the religious rights of corporations

July 4

Five things to know about the Supreme Court ruling Monday that family-owned businesses don’t have to offer their employees contraceptive coverage that conflicts with the owners’ religious beliefs:

1. Corporations can’t pray, but they do have religious rights.

Hobby Lobby isn’t a person. It’s a chain of crafts stores owned by a religious family. David Green, the founder and chief executive of the retail chain, objects to parts of the Affordable Care Act’s emergency contraception mandate, but employees’ health insurance is paid for not by the Greens but by the company. The first question the justices had to answer was this: Does Hobby Lobby have religious rights?

A majority of the justices held that a closely held company such as Hobby Lobby does have religious rights. The court didn’t apply those rights, however, to publicly held corporations, whose owners’ religious beliefs would be hard to discern.

But well before the justices had delivered their verdict on this question, many legal scholars said they wouldn’t be surprised if the justices affirmed the company’s religious rights. American corporations do have some of the rights and responsibilities usually associated with people. And in the 2010 Citizens United campaign finance case, the justices overturned bans on corporate political spending as a violation of freedom of speech — corporations’ free speech.

2. The Affordable Care Act isn’t the only way to get contraception to women.

The justices in this case interpreted not only the Constitution but also the 21-year-old Religious Freedom Restoration Act. One of the things the RFRA says is that if a federal law is going to substantially burden someone’s religious freedom, the government must make sure that the law uses the “least restrictive means” to achieve its purpose. In this case, the purpose is providing birth control to female employees at no cost.

Justice Stephen G. Breyer asked the “least restrictive means” question when this case was argued before the court: Instead of making the company provide insurance that conflicts with its owners’ beliefs, how about if the government pays for it? The Supreme Court answered Breyer’s question in the affirmative in its opinion: There are ways of getting contraception to women that don’t substantially burden the Green family’s religious beliefs. Justice Anthony M. Kennedy, in a concurring opinion, suggested that the government could pay.

3. The American people probably would have ruled differently.

There are nine U.S. Supreme Court justices, and most of them agreed with Hobby Lobby. But what if a softball team composed of a random sample of nine American adults got to decide this case instead? The team likely would have come up with a different decision.

In a Kaiser Health Tracking Poll, released in April, Americans expressed solid support for the contraception mandate, backing it by a 2-to-1 ratio. Kaiser also asked about requiring coverage in the Hobby Lobby scenario: Should a for-profit business owner with religious objections to birth control be subject to the requirement? Again, a majority (55 percent) said yes, they should, “even if it violates their owners’ personal religious beliefs.”

4. This court supports religious rights.

Chief Justice John G. Roberts Jr.’s court is shaping up to be generally protective of that free exercise clause. Less than two months ago, the court ruled 5 to 4 that the town of Greece, N.Y., could regularly convene town meetings with sectarian Christian prayers. And in 2012, the court ruled 9 to 0 that a Lutheran school could fire a teacher who had some ministerial responsibilities, despite the government’s argument that her dismissal violated the Americans With Disabilities Act.

In all these cases, the court sided with religious rights over other rights. “The Roberts court has been a great champion of religious freedom,” said Lori Windham, senior counsel at the Becket Fund for Religious Liberty, which represented Hobby Lobby.

5. Hobby Lobby won, but the next company to cite religious objections might well lose.

Supporters of the contraception mandate had painted scenarios of religious rights run amok in the event of a Hobby Lobby win. What if a Jehovah’s Witness invokes her religious rights and says she won’t cover blood transfusions in her company’s health plan? What if an employer says vaccinations conflict with his beliefs?

The Hobby Lobby decision might embolden religious employers to object to laws they consider burdensome. But that doesn’t mean they would always win. The court made clear in this ruling that religion should not always trump the law and said its decision applies to the contraception mandate, not other insurance mandates.

The court also specified that an employer could not use religion to get an exemption from laws that prohibit discrimination — on the basis of race, for example. The justices were silent, however, on whether employers’ religious beliefs could override laws that prohibit discrimination on the basis of sexual orientation.

Also unclear, legal experts say, is how this decision will affect religious nonprofit groups and religiously affiliated schools and hospitals that want the same sort of exemption the justices awarded to Hobby Lobby.

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