Employers’ religion versus workers’ contraception in the US Supreme Court

I’ve not seen much coverage over here of an important case, Sebelius v Hobby Lobby Stores, heard by the United States Supreme Court three weeks ago. The opinion is expected in June. It’s a case of what in the past I’ve called religitigation – people using litigation to assert their religious beliefs – but whereas in Britain we’re used to employees (like Nadia Eweida) trying to claim religious entitlements to defy their employers’ policies, and to business owners (like the Bulls) trying to defend themselves against discrimination claims from customers, we’re not so used to employers using religious rights arguments in an attempt to exempt themselves from statutory duties. But that’s what’s happening here.

Hobby Lobby is a retail chain set up by the Green family, and committed to “Honoring the Lord”. Its owners object to a requirement, flowing from President Obama’s Affordable Care Act, that Hobby Lobby should provide health insurance to its employees that covers the cost of the “morning after pill”, and contraceptive intrauterine devices. Hobby Lobby says this “mandate” breaches the company’s right to freely exercise its religion under section 3 of the Religious Freedom Restoration Act, “RFRA”, which says –

(a) IN GENERAL. – Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) EXCEPTION. – Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –

(1) furthers a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Hobby Lobby’s argument is that it is a “person” exercising religion for the purposes of RFRA (and the “free exercise clause” of the First Amendment to the Constitution), and that having to cover employee’s use of these contraceptives (or face substantial financial penalties) puts a “substantial burden” on its religious freedom. It argues that the federal Department of Health and Human Services (Kathleen Sebelius has been President Obama’s Health Secretary since 2009 – as it happens she resigned recently) can’t have any compelling governmental interest in the contraceptive coverage mandate since it has created exemptions for non-profit religious organisations as well as transitional “grandfathering” arrangements, and that in any case the mandate is not the least restrictive means of furthering that interest.

The federal government argues that while a profit-making company is a “person”, it can’t exercise religion, and that in any case the mandate does not impose a substantial burden. Ensuring proper health coverage for women is a compelling government interest, and Hobby Lobby can identify no less restrictive means of achieving it than the ACA, which allows Hobby Lobby to choose to pay a tax instead of providing contraceptive coverage, if it prefers to. At more than one stage of the legal analysis, the government asks the Court to take account of the competing right of employees and their dependents to health care, including contraception.

Anyone interested in European human rights law will immediately recognise the “compelling governmental interest” and “least restrictive means” tests as representing something similar to our concepts of legitimate grounds of interference with rights, and proportionality. But perhaps the most interesting question raised by the case is whether a company can have religious freedom at all.

What do I think? Legally, my thoughts come with a health warning since I can’t claim any expertise in American constitutional law. But it seems to me the government has a decent point on ordinary companies (as opposed to churches and religious charities) not having religious freedom. A retail firm does not have beliefs, or carry out religious practices, after all. I’m not sure there’s a substantial burden here: Hobby Lobby could choose to pay tax instead of providing any health coverage, and possibly even save money – a point I thought Hobby Lobby’s counsel, Paul Clement, was in trouble over at the hearing when he seemed to argue that religious freedom requires Hobby Lobby to be able both to choose its own à la carte health coverage and to pay no tax, rather than choose between the options in the Affordable Care Act.

I think there’s a compelling government interest here, and that the limited exemptions, accommodations and transitional arrangements make no difference; and the ability to pay a tax instead seems to be a good point in the government’s favour on proportionality. I would certainly have raised similar questions to those put at the hearing by Justices Ginsburg, Sotomayor and Kagan.

But then, politically I think providing of proper health care for as many people as possible is a vital objective – as is equality and self-determination for women – and that business owners should not be able to abuse their economic power to put their own ideological hobby-horses first. From a narrow British perspective, I’m grateful for the NHS.

If you want to read more about the case, the wonderful SCOTUSblog has brilliant coverage as always – Amy Howe explains the case in plain English, Lyle Denniston recapped the arguments, and you can read the government’s brief, Hobby Lobby’s brief, and the government’s reply. You can also listen to the oral argument in the Supreme Court in the player below, thanks to Chicago-Kent College of Law’s terrific Oyez project. If you have any nerdish feelings about law and a spare ninety minutes, it’s great.

Every time I remind myself of how brilliantly Americans are covering their Supreme Court, and have made its workings so accessible, as a British unbeliever I say God Bless America.