David Schultz, The Daily Record Newswire
The Supreme Court decision in Burwell v. Hobby Lobby is described by some as one more example of the continuing Republican war against women. While perhaps true, it misses something even larger and more profound. The decision is really more about a continuing war against government regulation that will prove to be a public administrator’s nightmare, making it difficult to implement not just the Affordable Care Act (ACA) but perhaps thousands of other state and federal laws.
Hobby Lobby tested the constitutionality of a requirement of the ACA that employer health care insurance include coverage for contraception. Owners of a corporation named Hobby Lobby contended that such a mandate violated their free-exercise rights, protected under both the First Amendment and the Religious Freedom Restoration Act (RFRA). In agreeing with the owners, the Supreme Court in a 5-4 decision made several leaps of logic.
First, the majority opinion looked to the text of RFRA. The law states that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
The first question was whether the law’s reference to “person” also included corporations. The Court said yes. It did that by making two arguments. One was to ask how a dictionary defined the word. Employing the federal Dictionary Act as its guide, the Court found that it defined person to include among other entities, corporations, companies, and partnerships. The Court then asked whether there was any indication that in passing RFRA Congress intended to define person, other than found in the Act, to exclude corporations.
Finding no indication of that, the Court said that RFRA protected the religious rights of corporations such as Hobby Lobby. Moreover, to the objection that corporations cannot exercise religion the Court responded by declaring, “All of this is true — but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
Second, the Court argued that creating a religious exemption under RFRA for a corporation had already occurred under the ACA when Congress exempted religious nonprofits from the contraception mandate. Thus, given that there was no indication that Congress meant to exclude corporations from RFRA protection and that nonprofits already were exempted from the insurance mandate, this was enough for five justices to rule in favor of Hobby Lobby.
In theory, the decision should have resolved legal uncertainty, but the reasoning leaves open more questions than it answers.
While the majority sought to assure the dissenters and the public that the decision was narrowly confined to contraception, that is far from the case. Nothing in the decision really limits the holding to just birth control. What if there were a Jehovah’s Witness employer who objected to insurance coverage for blood transfusions? Nothing in the decision prevents this from being a possible religious objection.
Moreover, what the decision also ignores is that birth control and contraception are also a health issue for women. What if a woman is prescribed a drug for health reasons other than contraception but it still has that effect? Does a corporation get to stick its nose into a doctor-patient relationship to determine why the drug is being used?
Another problem with the decision is that by its reading of RFRA, all types of business entities are entitled to protection. The Court in Hobby Lobby asserted that it knew of no reason why a publicly-traded corporation would want to claim a religious exemption. But by the logic of the decision, nothing prevents that from occurring.
Why should the religious exemption stop with contraception and health care coverage under the ACA? Why not use RFRA as a way to challenge other laws, such as civil rights protections? Legislators in Arizona passed, but the governor vetoed, a law that would have given businesses a religious right to refuse to serve gays, lesbians, and transgender individuals. After Hobby Lobby, look to see more laws like this pop up.
Yes, these laws will pit RFRA and the First Amendment against civil rights laws and the Equal Protection clause, but it is not certain how the Courts will reconcile the two after this case. Look to see some companies seek religious exemptions from equal employment laws, or some property owners seek religious exemptions from fair housing laws. Perhaps, down the line, there are even ways to claim religious exemption from a host of other regulations. None of this is impossible, given the logic of the decision.
Hobby Lobby creates a mess for public administrators. They will now have to look for possible religious objections to a host of regulations they implement. Some assertions will be valid, some frivolous. Sorting them out will force the government to make decisions regarding what are genuine religious concerns, thereby forcing public officials to make decisions about orthodoxy and genuineness of faith. Those decisions point to a new problem — the potential enshrining of religious belief in the law — that may amount to an establishment of religion and a violation of the First Amendment.
