First Amendment: Religious Freedom, Free Exercise

Two terms ago, the Supreme Court upheld—as a tax—the main provisions of the Affordable Care and Patient Protection Act (ACA). Since then, the embattled legislation has been assailed by countless other political and legal challenges. One provision of the ACA in particular has been especially controversial: the contraception mandate.

The ACA and related Health and Human Services (HHS) regulations require certain employers to provide their employees with insurance that covers the 20 forms of contraception currently approved by the Food and Drug Administration. Among those approved contraceptive methods are four that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. In separate cases, the owners of three closely held, for-profit corporations objected to providing such coverage, since facilitating access to contraceptive drugs or devices that operate after fertilization would violate their Christian beliefs that life begins at conception. The Supreme Court decided these three cases together under the caption Burwell v. Hobby Lobby Stores, Inc.

Although these challenges may seem to concern free-exercise under the First Amendment, the cases actually arise under the Religious Freedom Restoration Act of 1993 (RFRA), a law enacted by Congress to overrule by statute the unpopular Supreme Court decision Employment Division v. Smith. Under the RFRA, the government is prohibited from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest,” i.e., unless the government satisfies the demands of strict scrutiny.

Thus, in deciding Hobby Lobby, the Court had to answer three questions: first, whether the corporations here were capable of exercising religion under the RFRA; second, whether the ACA burdened those corporations’ religious exercise; and third, whether the government had shown that the burden was narrowly tailored to further a compelling governmental interest.

In a 5–4 decision by Justice Alito, the Court ruled that closely held, for-profit corporations are “persons” under the RFRA and thus the protections of the RFRA extend to those corporations. According to Justice Alito, the purpose of extending rights to corporations is to protect the rights of the people associated with the corporation, including its shareholders, officers, and employees. Next, the Court concluded that the contraceptive mandate substantially burdens the corporations’ exercise of religion by requiring them to engage in conduct that seriously violates their sincere religious belief that life begins at conception. Thus, as provided for in the RFRA, the Court subjected the contraceptive mandate to strict scrutiny, which the mandate failed to satisfy. Even assuming that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, the Court held that the government had failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. As less restrictive alternatives, the Court suggested that the Government could, for example, assume the cost of providing contraceptives to women unable to obtain coverage due to their employers’ religious objections, or extend the accommodation that HHS has already established for religious nonprofit organizations to for-profit employers with religious objections to the contraceptive mandate.

Justice Kennedy, who joined Justice Alito’s majority opinion, concurred separately to qualify the majority’s holdings, attempting to limit the decision to the issue of whether the mandate is narrowly tailored—without giving the majority “the breadth and sweep ascribed to it by the respectful and powerful dissent.”

And that dissent was indeed powerful. (It appears, unscientifically, to be the first ever utterance from the Supreme Court to “go viral.”) Justice Ginsburg, joined by Justice Sotomayor and by Justices Breyer and Kagan in part, issued a lengthy and vehement dissent attacking the majority’s analysis at every step. In her analysis, for-profit corporations are not covered by RFRA; the contraception mandate does not burden religion; and the mandate is nonetheless narrowly tailored to the government’s compelling interest in providing access to contraception. As opposed to Justice Alito’s characterization of the majority’s opinion as protecting the religious freedoms of the people associated with the corporations, Justice Ginsburg argued that the majority ignores the rights of those corporations’ employees, imposing the religious convictions of the employers upon those whom they employ. Justice Ginsburg also questioned the ability of the lower courts to apply Hobby Lobby in a way that does not violate the Establishment Clause: for if Justice Kennedy is correct that Hobby Lobby’s holding is limited to the ACA’s contraceptive mandate, how does that not entail advancing certain religious beliefs and not others? Can the Court honor some employers religious objections (to that mandate) but not others’ (to other generally applicable laws), and how will it decide which religious objections are covered by the RFRA and which are not?

At its most narrow, the Hobby Lobby decision permits closely held corporations with sincere religious beliefs to opt out of the ACA’s no-cost contraception coverage. But because such coverage may be provided separately by the government, it is possible that many employees and their dependents will be shielded from the Court’s decision (at taxpayer expense). But the case could have much more far-reaching effects. Despite Justice Kennedy’s attempt to constrain the Court’s decision in his concurring opinion, the majority’s broad language may allow closely held corporations to object to essentially any federal law to which they express a religious objection—unless the government can satisfy the daunting demands of strict scrutiny. This may leave the door open for more religious objections to various other provisions of the ACA and may even bleed into entirely unrelated areas of law, such as anti-discrimination laws and other generally applicable laws aimed at protecting employees or guaranteeing equal access and accommodation to consumers.