In a case that could strike a blow against the Affordable Care Act and embolden religious liberty proponents the Supreme Court must decide if for-profit corporations are entitled to the right to exercise religion.
The Hobby Lobby case, named after the corporate plaintiff, involves a for-profit corporation suing the Administration over a requirement in the Affordable Care Act that corporations provide health insurance that covers certain types of birth control. The owners of Hobby Lobby believe that some of the types of birth control that must be covered are abortifacient drugs and that providing coverage for them will violate their religious beliefs.
What are the grounds for Hobby Lobby’s case?
The case involves the meaning of the Religious Freedom Restoration Act, a law passed in 1993 that required strict scrutiny of laws that substantially burden the exercise of a sincere religious belief. The law was passed in response to a Supreme Court case, Employment Division v. Smith, authored by Antonin Scalia that held government may prohibit the religious use of peyote as long as the law did not single out any particular religious group and applied to everyone.
In reviewing whether a violation of the Religious Freedom Act has occurred a court must first determine if a person’s sincere religious exercise has been substantially burdened by the government. If this has been shown then it is up to the government to prove that application of the law to the person satisfies a compelling government interest.
In this case the legal questions can be simplified as:
1) Is Hobby Lobby a person exercising religion? if yes, then…
2) Is Hobby Lobby’s religious exercise substantially burdened? if yes, then…
3) can the government demonstrate a narrowly tailored government interest?
Hobby Lobby must prove yes on the first two questions to get to the third where if the answer is yes then the government wins, if the answer is no, Hobby Lobby wins.
The Deciding Factor
The question of whether Hobby Lobby is a “person” within the meaning of the statute might be the question on which the case hinges. The U.S. Federal Court of Appeals for the 8th Circuit found that Hobby Lobby was a person for purposes of the Act. The Court relied on the Dictionary Act, which defined a person as including “corporation.” It also could find no meaningful distinction within the Religious Freedom Restoration Act or Supreme Court cases between a for-profit corporation and a non-profit corporation as the government argued.
Another Circuit Court reached an opposite opinion in Conestoga Wood Specialties Corp. v. Sebelius. While concerned more with a First Amendment claim than a claim arising under the Religious Freedom Restoration Act, the Third Circuit found that there was no history of courts providing free exercise protection to corporations. It notes that it could not find a single case in which a for-profit, secular corporation was found to have free exercise rights and concludes from that that a for-profit secular corporation cannot exercise religion.
Reaching this conclusion the Third Circuit quickly dispensed with the Religious Freedom Restoration Act claim by denying that a corporation could exercise religion under the Act.
This is the issue that the Supreme Court will deal with in deciding this case. Legal analysts point out that the Citizens United case might give us some guidance on how the Court will decide. In that case the Court ruled that for-profit corporations do have First Amendment rights of speech. Whichever way the Court decides it will more than likely be a very close decision.