Reach Beyond Issue

Ruling Could Have Reach Beyond Issue of Contraception

By ADAM LIPTAK 

The Supreme Court on Tuesday will hear arguments in a case that pits religious liberty against women’s rights.

That issue is momentous enough. But it only begins to touch on the potential consequences of the court’s ruling in the case, notably for laws banning discrimination against gay men and lesbians.

The question directly before the justices is whether for-profit corporations must provide insurance coverage for contraception, a requirement of the Affordable Care Act. Hobby Lobby, a chain of crafts stores, challenged the requirement, saying it conflicts with the company’s religious principles.

“If Hobby Lobby were to prevail, the consequences would extend far beyond the issue of contraception,” said Walter Dellinger, a former acting United States solicitor general who filed a brief urging the court to uphold the law.

Objections to laws based on religious beliefs can arise in many settings, and supporters of the coverage requirement say a ruling for the company could frustrate the enforcement of laws addressing health, safety and civil rights.

Photo

“We would be entering a new world in which, for the first time, commercial enterprises could successfully claim religious exemptions from laws that govern everyone else,” Mr. Dellinger said. “A win for Hobby Lobby could turn out to be a significant setback for gay rights.”

Richard W. Garnett, a law professor at Notre Dame who filed a brief on the other side, said that overstated matters.

“The prediction that a win for Hobby Lobby — a case that is not at all about discrimination or denial of service and instead is about deeply held views regarding the sanctity of life — would be a serious setback for gay rights is, in my view, unfounded,” he said.

Few businesses, he said, could show that laws banning discrimination on the ground of sexual orientation impose a substantial burden on religious beliefs. An exception, he said, might be an objection from a wedding photography company seeking to turn down business from same-sex couples.

 

The court’s ruling in the Hobby Lobby case could also affect other kinds of laws. In a brief filed this month, Solicitor General Donald B. Verrilli Jr. warned the justices that a broad decision striking down the contraception provision could imperil minimum wage and overtime laws, Social Security taxes and vaccination requirements, all of which have been subject to religious challenges in earlier cases.

Another brief, from California, 14 other states and the District of Columbia, argued that such a decision would allow businesses to seek to deny coverage for blood transfusions, immunizations, treatments involving stem cells and psychiatric care.

But Michigan and 19 other states countered that protecting religious freedom is “as American as apple pie.” That freedom, they said, protects “a Jewish-owned deli that does not sell nonkosher foods” and “a Muslim-owned financial brokerage that will not lend money for interest.”

The justices will analyze Hobby Lobby’s challenge under the Religious Freedom Restoration Act of 1993, which requires the federal government to meet a demanding standard when it imposes burdens on religious beliefs.

Eighteen states have religious freedom laws similar to the federal one, and additional bills are pending in Hawaii, Missouri, Mississippi, Oklahoma and Wisconsin, according to a survey from the American Civil Liberties Union. Last month, Gov. Jan Brewer of Arizona, a Republican, vetoed a religious freedom bill after objections from business leaders and others who said the measure would have allowed discrimination against gays.

Douglas Laycock, a law professor at the University of Virginia, said he was worried that a ruling against the corporations in Tuesday’s case would threaten to unravel important safeguards in religious freedom laws. “The whole secular left has decided,” he said, that such laws “are very dangerous because they care so much more about the contraception cases and gay rights.”

Professor Laycock, who filed a brief supporting the corporations, said the laws had been mischaracterized. Though they vary in some details, they generally require the government to have good reasons for imposing burdens on religious practices. That is, he said in a blog post last month, they require courts to scrutinize challenged actions but do not dictate which side should prevail.

The 1993 law was enormously popular when it was enacted. It was a response to a 1990 Supreme Court decision that declined to recognize religious exceptions under the First Amendment’s free exercise clause to generally applicable laws. Congress effectively reversed that decision.

The law was sponsored by Senator Edward M. Kennedy, Democrat of Massachusetts, and Senator Orrin G. Hatch, Republican of Utah, and it was approved by a 97-to-3 vote in the Senate and by voice vote without objection in the House.

“What this law basically says,” President Bill Clinton said before signing the bill, “is that the government should be held to a very high level of proof before it interferes with someone’s free exercise of religion.”

At the time, most people thought the law would protect idiosyncratic religious beliefs from insensitive regulations. In praising the law, Vice President Al Gore said that, for instance, it would allow families to object on religious grounds to laws calling for mandatory autopsies.

Two decades later, the law is at the center of challenges from adherents of mainstream religions who object to coverage requirements that the law’s supporters say are crucial to women’s health and gender equality.

The Supreme Court’s analysis under the 1993 law has four steps. The justices must first determine whether for-profit companies or their owners are entitled to invoke it.

That question is reminiscent of the one in Citizens United v. Federal Election Commission, the 2010 campaign finance decision based in part on the free speech rights of corporations. Its counterpart in the context of religious freedom has divided the lower courts.

In July, the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled that the Conestoga Wood Specialties Corporation, which makes wood cabinets and is owned by a Mennonite family, could not invoke the 1993 law because “for-profit, secular corporations cannot engage in religious exercise.”

In June, the United States Court of Appeals for the 10th Circuit, in Denver, came to the opposite conclusion, saying that Hobby Lobby was a “person” under the 1993 law.

If the Supreme Court concludes that the corporations or their owners may invoke the law, it must then determine whether the contraception coverage requirement places a “substantial burden” on religious practices.

Hobby Lobby, which has more than 500 stores and more than 13,000 full-time employees, is owned by a family that says its tries to run its business on Christian principles. The family says that providing coverage for some drugs and devices would make it complicit in practices tantamount to abortion.

That position is contested as a scientific matter, but the Obama administration told the justices that the family’s “sincerely held religious opposition to certain forms of contraception is not subject to question in these proceedings.”

Hobby Lobby says its failure to offer comprehensive coverage could subject it to fines of $1.3 million a day. Dropping insurance coverage for its employees, it added, would be disruptive and unfair and lead to fines of $26 million a year.

Those penalties, the company says, amply satisfy the required “substantial burden.” But Martin Lederman, a law professor at Georgetown, responded that the company would be better off financially if it stopped providing health insurance and paid a relatively modest fine.

The final steps in the analysis, should the court find a substantial burden, are an application of the most demanding test in constitutional law, under which the government must show that the coverage requirement is “the least restrictive means of furthering” a “compelling governmental interest.”

The consolidated cases Tuesday — Sebelius v. Hobby Lobby Stores, No. 13-354, and Conestoga Wood Specialties v. Sebelius, No. 13-356 — are likely to be decided by the end of June.