 |
| © Wikimedia Commons user CyberXRef |
Today the United States Supreme Court held on a 5–4 vote that the Religious Freedom
Restoration Act (RFRA) prohibits the federal government from forcing a closely
held corporation to provide contraception to which the company’s owners object
based on their sincerely held religious beliefs. This will likely mean that the Obama administration will extend the accommodations made to religious nonprofits under the Affordable Care Act (A.C.A.) will also apply to closely held corporations that have religious objections to some or all types of contraception. While the decision did not involve religious organizations, they can take this decision as providing more room to use nontraditional structures for purposes churches don’t typically pursue.
The majority opinion, written by Justice Samuel Alito, repeatedly identified its
boundaries. The decision does not settle
questions about publicly traded corporations, blood transfusions, vaccines,
discrimination against employees, or similar objections made by religious entities. Also, no one has disputed the sincerity of the families who own and control the companies party to this case, so the Court did not address that issue.
boundaries. The decision does not settle
questions about publicly traded corporations, blood transfusions, vaccines,
discrimination against employees, or similar objections made by religious entities. Also, no one has disputed the sincerity of the families who own and control the companies party to this case, so the Court did not address that issue.
There were five opinions: the majority (35 pages), a concurrence by Justice Kennedy (4 pages), and three dissents by Justice Ginsburg, Justice Breyer, and Justice Kagan, respectively.
Read the full opinion, with a summary and all five opinions, here. You can listen to the oral argument here. You can read the argument transcript here. For a helpful collection of briefs, decisions, and analysis, SCOTUSblog has a page here. There will be much more at that page and elsewhere in the coming months.
Takeaway for religious organizations
Although the decision does not directly involve religious organizations because they are exempt under implementing regulations, it does bode well for them when it comes to flexibility in how they do business.
The important takeaway is this: while the corporate
structure of an organization is important, it does not determine whether RFRA’s
protections apply by itself. The same applies to whether an organization’s purposes
include making a profit. Religious organizations can choose creative corporate structures and purposes with much more confidence that they won’t be checking their RFRA rights at the door. (But they might jeopardize their tax-exempt status by seeking a profit, for instance.)
structure of an organization is important, it does not determine whether RFRA’s
protections apply by itself. The same applies to whether an organization’s purposes
include making a profit. Religious organizations can choose creative corporate structures and purposes with much more confidence that they won’t be checking their RFRA rights at the door. (But they might jeopardize their tax-exempt status by seeking a profit, for instance.)
This
decision suggests that a religious community could expect the protections it enjoys under RFRA or similar statutes even if it decided to organize as a for-profit entity rather than a
nonprofit entity. A congregation could, for example, set up a business as a partner entity and insist on hiring only employees who are adherents to their faith. Under the right circumstances, that decision would very likely be protected as if a nonprofit church had made it. (The details of corporate structure and employment decision-making are still very important, so make sure to check with an attorney before making these decisions.) Of course, a secular, for-profit corporation without any stated religious beliefs cannot discriminate based on employees’ religious affiliation.
decision suggests that a religious community could expect the protections it enjoys under RFRA or similar statutes even if it decided to organize as a for-profit entity rather than a
nonprofit entity. A congregation could, for example, set up a business as a partner entity and insist on hiring only employees who are adherents to their faith. Under the right circumstances, that decision would very likely be protected as if a nonprofit church had made it. (The details of corporate structure and employment decision-making are still very important, so make sure to check with an attorney before making these decisions.) Of course, a secular, for-profit corporation without any stated religious beliefs cannot discriminate based on employees’ religious affiliation.
General overview of Hobby Lobby
Employees of Hobby Lobby and the other companies
likely won’t be affected.
This decision will almost certainly not affect the
employees of Hobby Lobby at all. Companies like it will probably be treated
just like other organizations with religious objections: women will receive
coverage for free contraceptives, but their employer won’t pay for it. But how
to accommodate the objecting companies will be left to the executive branch. But that will be a decision for the Obama administration, which in the hours immediately after the decision was handed down, made statements suggesting Congress ensure employees receive coverage for contraception despite their employers’ religious objections.
employees of Hobby Lobby at all. Companies like it will probably be treated
just like other organizations with religious objections: women will receive
coverage for free contraceptives, but their employer won’t pay for it. But how
to accommodate the objecting companies will be left to the executive branch. But that will be a decision for the Obama administration, which in the hours immediately after the decision was handed down, made statements suggesting Congress ensure employees receive coverage for contraception despite their employers’ religious objections.
The decision interpreted statutes, not the Constitution.
Specifically,
four statutes: the A.C.A., RFRA, the Religious Land Use and Institutionalized
Persons Act (RLUIPA) (because RLUIPA amended RFRA’s definition of exercise of religion), and the Dictionary Act
(for the definition of person, which is
not specifically defined by RFRA).
four statutes: the A.C.A., RFRA, the Religious Land Use and Institutionalized
Persons Act (RLUIPA) (because RLUIPA amended RFRA’s definition of exercise of religion), and the Dictionary Act
(for the definition of person, which is
not specifically defined by RFRA).
In 1993
Congress set a higher standard for protecting religious exercise than the Court
had read in the First Amendment. RFRA is the statute that contains that higher
level of protection. So the Court decided the case under the more strenuous
RFRA, which provides the following standard: the government may not impose a
substantial burden on the exercise religion unless it has a compelling interest
and chooses the least restrictive means of serving that interest.
Congress set a higher standard for protecting religious exercise than the Court
had read in the First Amendment. RFRA is the statute that contains that higher
level of protection. So the Court decided the case under the more strenuous
RFRA, which provides the following standard: the government may not impose a
substantial burden on the exercise religion unless it has a compelling interest
and chooses the least restrictive means of serving that interest.
Here, the
Court assumed that the interest of ensuring women have cost-free access to the
contraceptives is compelling, but it decided there are narrower ways to
accomplish that goal. For instance, the A.C.A. accommodates religious
nonprofits by guaranteeing employees receive coverage for contraceptives
without requiring the employer to pay for that coverage. If the federal
government applied that same accommodation to for-profit employers, the women
would not be affected at all. They would still receive the same coverage, but
their employer would not be the one paying for it.
Court assumed that the interest of ensuring women have cost-free access to the
contraceptives is compelling, but it decided there are narrower ways to
accomplish that goal. For instance, the A.C.A. accommodates religious
nonprofits by guaranteeing employees receive coverage for contraceptives
without requiring the employer to pay for that coverage. If the federal
government applied that same accommodation to for-profit employers, the women
would not be affected at all. They would still receive the same coverage, but
their employer would not be the one paying for it.
The A.C.A. does not require coverage for
contraceptives, regulations do.
The A.C.A.
itself does not mandate coverage of contraceptives. Instead, Congress only
required health plans to provide “preventive care and screenings” for
women without “any cost sharing requirements.” 42 U.S.C. §
300gg–13(a)(4). The Department of Health
and Human Services (H.H.S.) is the department responsible for the A.C.A.
Congress assigned an H.H.S. subdivision, the Health Resources and Services
Administration (H.R.S.A.) to develop implementing regulations.
itself does not mandate coverage of contraceptives. Instead, Congress only
required health plans to provide “preventive care and screenings” for
women without “any cost sharing requirements.” 42 U.S.C. §
300gg–13(a)(4). The Department of Health
and Human Services (H.H.S.) is the department responsible for the A.C.A.
Congress assigned an H.H.S. subdivision, the Health Resources and Services
Administration (H.R.S.A.) to develop implementing regulations.
The
H.R.S.A.-written Women’s Preventive Services Guidelines requires employers to
provide coverage for all F.D.A.-approved contraceptives, sterilization
procedures, education, and counseling.
H.R.S.A.-written Women’s Preventive Services Guidelines requires employers to
provide coverage for all F.D.A.-approved contraceptives, sterilization
procedures, education, and counseling.
The A.C.A. does not provide an exemption for religious
organizations; regulations do.
The
exemptions from the contraceptive mandate were also left to H.R.S.A. The
exempted categories include “churches, their integrated auxiliaries, and
conventions or associations of churches, ” (the same category that doesn’t
have to file annual tax returns under the tax code at 26 U. S. C. §6033(a)(3)(A)(i)). Also exempted are nonprofit organizations holding themselves
out as religious organizations that oppose coverage because of religious
objections. These are found at 45 CFR § 147.131(a) & (b).
exemptions from the contraceptive mandate were also left to H.R.S.A. The
exempted categories include “churches, their integrated auxiliaries, and
conventions or associations of churches, ” (the same category that doesn’t
have to file annual tax returns under the tax code at 26 U. S. C. §6033(a)(3)(A)(i)). Also exempted are nonprofit organizations holding themselves
out as religious organizations that oppose coverage because of religious
objections. These are found at 45 CFR § 147.131(a) & (b).
The dispute only involved four contraceptives.
The
A.C.A.’s implementing regulations require employers to provide coverage for all
F.D.A.-approved contraceptives. Only four of those, called abortifacients, prevent pregnancy by
fertilization of an already-fertilized egg (or embyro) from developing further
by inhibiting its attachment to the uterus (causing the embryo’s destruction),
which the companies’ owners object to as amounting to abortion.
A.C.A.’s implementing regulations require employers to provide coverage for all
F.D.A.-approved contraceptives. Only four of those, called abortifacients, prevent pregnancy by
fertilization of an already-fertilized egg (or embyro) from developing further
by inhibiting its attachment to the uterus (causing the embryo’s destruction),
which the companies’ owners object to as amounting to abortion.
Unlike
Roman Catholic and other religious entities objecting to the contraception mandate (most of whom are already exempted), the
three companies, owned and controlled by Mennonite and Evangelical families,
have no objection to providing coverage for all other contraceptive methods. So they
will pay for coverage for most contraceptives for their employees even after they are given the accommodation required by today’s decision.
Roman Catholic and other religious entities objecting to the contraception mandate (most of whom are already exempted), the
three companies, owned and controlled by Mennonite and Evangelical families,
have no objection to providing coverage for all other contraceptive methods. So they
will pay for coverage for most contraceptives for their employees even after they are given the accommodation required by today’s decision.
This does not decide the challenges brought by (mostly
Roman Catholic) church organizations.
This
decision specifically does not decide several pending cases brought by Roman
Catholic and other religious entities that fall within the categories exempted
by the H.R.S.A.’s regulations. Those challenges involve whether the government
may require religious organizations to notify their objections to
contraceptives to their insurance providers or administrators.
decision specifically does not decide several pending cases brought by Roman
Catholic and other religious entities that fall within the categories exempted
by the H.R.S.A.’s regulations. Those challenges involve whether the government
may require religious organizations to notify their objections to
contraceptives to their insurance providers or administrators.
The challenging
groups maintain that filling out the two-page form certifying their religious
belief against contraception would violate their corporate religious
convictions. They explain that doing so still results in their
employees getting coverage for services the religious employers object to. They
argue that it doesn’t make a difference that they don’t have to pay for the
coverage. Their participation in providing contraception in any way is what they object to.
groups maintain that filling out the two-page form certifying their religious
belief against contraception would violate their corporate religious
convictions. They explain that doing so still results in their
employees getting coverage for services the religious employers object to. They
argue that it doesn’t make a difference that they don’t have to pay for the
coverage. Their participation in providing contraception in any way is what they object to.
Today’s
decision provides little guidance on whether those groups will prevail.
The Hobby Lobby employers were being
forced to pay for objectionable contraceptive coverage, while the other groups
object to filling out a form that will allow others to pay for objectionable
coverage. So while the Hobby Lobby
companies were not objecting to others paying for the services, that is
precisely what the other groups are doing. (I wrote about a development in one
of those cases here.)
decision provides little guidance on whether those groups will prevail.
The Hobby Lobby employers were being
forced to pay for objectionable contraceptive coverage, while the other groups
object to filling out a form that will allow others to pay for objectionable
coverage. So while the Hobby Lobby
companies were not objecting to others paying for the services, that is
precisely what the other groups are doing. (I wrote about a development in one
of those cases here.)
This did not address whether the companies’ beliefs
are sincerely held.
To be
protected, the religious beliefs must be sincerely held. No one challenged the
sincerity of any of the companies’ stated beliefs. But the Court did discuss
this issue, noting that courts decide the sincerity of beliefs regularly,
notably in the context of prisoners who seek religious accommodation.
protected, the religious beliefs must be sincerely held. No one challenged the
sincerity of any of the companies’ stated beliefs. But the Court did discuss
this issue, noting that courts decide the sincerity of beliefs regularly,
notably in the context of prisoners who seek religious accommodation.
Still have questions about the Hobby Lobby decision? Have a question about legal issues affecting religious organizations? Let me know at questions@lawmeetsgospel.com, www.facebook.com/LawMeetsGospel, or @LawMeetsGospel.