What’s at Stake in Monday’s Hobby Lobby Ruling from the Supreme Court

On Monday morning, the U.S. Supreme Court is
expected to announce its final decisions of the 2013-2014 term.
Only two cases still remain undecided, and one of them is perhaps
the most closely watched case of the year: Burwell v. Hobby
Lobby Stores, Inc. At issue is the so-called Obamacare
contraceptive mandate, the provision of the Patient Protection and
Affordable Care Act which requires most businesses to cover birth
control in their employee health plans. What are the legal issues
at stake? Here’s a rundown from my
recent column on the case:

According to Hobby Lobby Stores Inc., an arts-and-crafts
retailer owned and operated by a family of evangelical Christians,
the contraceptive mandate forces both the business and its owners
to violate their religious scruples by providing access to four
methods of birth control they see as equivalent to abortion, such
as the emergency contraceptive Plan B.

That requirement, Hobby Lobby maintains, violates the Religious
Freedom Restoration Act (RFRA), a 1993 law signed by President Bill
Clinton which says the government may not “substantially burden a
person’s exercise of religion,” unless it has a “compelling”
justification and has used “the least restrictive means” available.
The contraceptive mandate, Hobby Lobby told the Supreme Court in
its
main brief, “is a textbook ‘substantial burden’ on religious
exercise under RFRA.”

The mandate’s defenders take the opposite view, arguing that
Hobby Lobby should lose because a for-profit corporation is unable,
by definition, to exercise religion. As David Gans of the liberal
Constitutional Accountability Center
put it, “corporations cannot pray, do not express devotion and
do not have a religious conscience.” Therefore, he argued, “the
justices should reject the notion that a corporation is a person
that exercises religion.”

During oral arguments in March, the justices
appeared
closely divided over these issues, peppering the lawyers on
each side with a series of sharp questions.

“Every court of appeal to have looked at the situation have held
that corporations can bring racial discrimination claims as
corporations,” Chief Justice John Roberts told Solicitor General
Donald Verrilli. “Does the government have a position on whether
corporations have a race?” Roberts asked. In other words, if
corporations are treated as persons for purposes of equal
protection jurisprudence, why should a free exercise claim brought
by a corporation be treated differently? Verrilli was forced to
concede that in discrimination cases “corporations can bring those
claims.”

Justice Stephen Breyer, a leader of the Court’s liberal wing,
also seemed dubious of that portion of the government’s case. “Take
five Jewish or Muslim butchers, and what you’re saying to them is
if they choose to work under the corporate form,” they have to
abandon the Free Exercise Clause as a legal tool, Breyer observed.
“Looked at that way,” he continued, “I don’t think it matters
whether they call themselves a corporation or whether they call
themselves individuals.”

But Hobby Lobby also ran into problems of its own. Justice Elena
Kagan, for example, worried that if the Court allowed this
particular religious objection to prevail it would open the
floodgates and completely undercut the federal health care law.
“There are quite a number of medical treatments that different
religious groups object to,” Kagan argued. “So one religious group
could opt out of this and another religious group could opt out of
that and everything would be piecemeal and nothing would be
uniform.”

Justice Anthony Kennedy, meanwhile, who may well hold the
deciding vote in the case, left both sides guessing. “The employee
may not agree with the religious—religious beliefs of the
employer,” Kennedy observed at one point. “Does the religious
beliefs just trump? Is that the way it works?” At another point,
however, Kennedy took issue with the solicitor general. “Under your
view,” Kennedy told Verrilli, a for-profit corporation “could be
forced to pay for abortions…your reasoning would permit
that.”

A decision in Burwell v. Hobby Lobby is expected on
Monday morning.