Raising the Standard at UGA since 2013.

Conscience Gets its Day in Court

Hobby Lobby owner David Green. (Photo courtesy Becket Fund)

On Tuesday, March 25, the Supreme Court heard what is likely the most important case of the 2013-2014 term. In Sebelius v. Hobby Lobby, the court must decide if the owners of a for-profit corporation have legal protection to refuse to include birth control in their employees’ health insurance policies. Under the Affordable Care Act, any employer with more than 50 employees must provide health insurance that includes certain policies, including contraceptives that the owners of Hobby Lobby oppose due to their religious beliefs. Both left and right are both watching this case closely, as it holds serious implications for the continuing battle between religious freedom and progressive social policies.

Founded by David Green, Hobby Lobby first opened in 1972 in Oklahoma City. What began as a small arts and crafts shop in a garage has grown into an enormous corporation operating over 600 stores and employing over 20,000 people. David Green and his family developed Hobby Lobby into an unusual company for its size: the store has become an extension of the Green family’s Christian faith. Many of the company’s policies center around treating its employees well: Hobby Lobby does not open on Sundays, closes its doors hours earlier than its competition and pays its employees almost twice the minimum wage. Employees are also given extra time off, relative to competitors, to attend to their families.

Hobby Lobby offered health insurance to its employees before the Affordable Care Act was passed, including policies that covered 16 of the 20 methods of contraception now required under the Affordable Care Act. The Greens have religious reservations about the other four methods of contraception (the “morning after pill,” “week after pill,” Ella and Plan B) because they can work after conception to prevent the implantation of a zygote. Crucially for this case, the Greens believe they cannot in good conscience provide drugs to others which have this outcome.

The legal question of this case concerns a law Congress passed in 1993 called the Religious Freedom Restoration Act (RFRA). The RFRA states that the federal government cannot substantially burden a person’s free exercise of religion unless the government has a “compelling” interest in doing so and uses the “least restrictive means” of imposing that burden.

Looking at this case under RFRA, three questions must be answered: (1) Can a for-profit corporation be considered a person? (2) Does the government have a compelling reason to institute a contraception mandate? (3) Finally, is the mandate being carried out in the least restrictive way?

THE EDITORS: Chief Justice Roberts on the importance of corporate personhood in preserving individual rights: “the First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”

First, if the Supreme Court is consistent it will likely decide that Hobby Lobby is a person. In its famous 2010 Citizens United v. FEC decision, the Supreme Court affirmed a long-standing tradition that treats corporations as “legal persons,” thereby assuring that the rights of individuals within corporations are preserved. Among other things, the First Amendment protects both the right of free speech and the free exercise of religion. If corporations have the First Amendment right to free speech, why should they not have the First Amendment right to the free exercise of religion? Under the precedent of corporate personhood, there is no good reason RFRA protections cannot be extended to Hobby Lobby.

Second, the government must answer whether it has a compelling reason to institute the mandate. The administration’s arguments about compelling reasons to institute this mandate are unpersuasive considering that the mandate is not a law but an administrative regulation created by Kathleen Sebelius’s HHS. If this policy was not important enough to merit a mention in close to 2,000 pages of law, can it really be considered of compelling interest to the government? A 2010 study by the Guttmacher Institute found that nine out of 10 employer-based insurance plans pre-ACA covered the “full range of prescriptive contraceptives,” casting further doubt on the premise that the contraception mandate rises to the level of a compelling interest.

Finally, whether the mandate is “minimally restrictive” is not much of a question at all. The government does not need to implicate employers to achieve its contraceptive goal. As the government, it could directly subsidize contraceptives, decree prices to contraceptive providers or provide tax credits or other financial support for contraceptive purchasers. Any of these possibilities is less burdensome to the religious consciences of employers — by mandating that employers provide coverage, the government has in fact chosen one of the most restrictive avenues imaginable.

Judging Sebelius v. Hobby Lobby based on RFRA and Supreme Court precedent, it should not be a surprise if Hobby Lobby is announced the winner in late June. However, simpler cases have had surprising decisions. No matter the result of this single case, the battle between progressive social tinkerers and religious liberty will rage for many years to come.

—Connor Kitchings is a freshman studying political science and economics

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