Hobby Lobby Recap: SCOTUS To Decide Who Can Claim Religious Exemptions

By Arielle P. Schwartz, Holley Law Fellow, National Gay and Lesbian Task Force

(You can learn more about our past analyses here and here.)

Task Force Deputy Executive Director Darlene Nipper at the Hobby Lobby rally in front of the Supreme Court.

Task Force Deputy Executive Director Darlene Nipper at the Hobby Lobby rally in front of the Supreme Court.

Now that the dust has started to settle and we await a decision from the Supreme Court on the Hobby Lobby case, we thought it would be a good time to dig a little deeper into the issues that arose during oral arguments and what some of the possibilities are when we hear a decision from the Supreme Court in June.

This case will decide the constitutionality of a fraction of the preventive services rule that mandates (among other things) health insurance coverage for all Food and Drug Administration approved contraceptive methods. More importantly, the Justices will decide who is exempt from these laws and under what framework.

The arguments focused primarily on whether a secular and private for-profit corporation’s owner is substantially burdened by the contraceptive-coverage mandate of the Affordable Care Act. The Government argues that Congress’s decision to provide exemptions was clear—churches, religious educational institutions, religious associations, and that’s it. Nobody else can claim an exemption under the Religious Freedom Restoration Act (RFRA) and Title VII. Hobby Lobby argues RFRA should be interpreted in a way that persons include for-profit corporations.

Attorney Paul Clement, representing Hobby Lobby, did not get more than two sentences into his argument when Justice Sotomayor asked:

Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusions and vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?

Clement responded that “the easiest way to distinguish them from contraception is if the government’s already provided this accommodation for religious employers.”

Justice Sotomayor continued, explaining that exemptions are made for vaccines, for example, on a different basis, but we have a tax code that applies to everybody with a “million exemptions.” “Does the creation of the exemption relieve me from paying taxes when I have a sincere religious belief that taxes are immoral?”

Attorney Clement argued that not all exemptions are created equal, rather some exemptions undermine the compelling interest factor. Essentially, Clement stated that contraception is already covered under Title X, providing for a least restrictive alternative to the contraceptive-coverage mandate under the ACA and at the end of the day, the government should pay for it themselves.

I thought Justice Kagan’s response was particularly noteworthy:

Mr. Clement’s understanding and interpretation of this law would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws.

This is the slippery slope that everyone is talking about. So how does a corporation exercise religion? Attorney Clement focuses on the “sincerity” of his clients religiously held beliefs irrespective of their commercial activity.

But the Supreme Court of the United States has never considered a for-profit corporation as having an ability to exercise religion. Furthermore, Hobby Lobby is not legally required to provide health insurance to their employees under the ACA—this is not a birth-control mandate. They have a choice: (1) Take advantage of the corporate healthcare tax benefit and provide employees comprehensive health insurance; or (2) Instead of providing health insurance, compensate employees by increasing wages and pay the government tax. By choosing the second option, the government will then supply insurance through various subsidies to people on the exchange that do not have employer insurance. Attorney Clement regards the second option as “punitive.”

Either way, the Justices will decide whether the religious beliefs of individuals trump the statutory rights of a corporations employees. Justice Ginsburg noted during oral arguments that there are twenty FDA approved contraceptives, all of them covered by the ACA. Hobby Lobby focused on four. Suppose the employer says contraceptives in general are against their religion. Is there a way to accommodate the interests of women who may want these particular devices without imposing a substantial burden on the employer who has the religious objection to it? Attorney Clement’s response— tell the insurance carrier to pay for it.

The final ask of the multi-billion dollar for-profit corporation? “Whatever the answer is for Little Sisters of the Poor, presumably [the Supreme Court of the United States] can extend the same thing to [Hobby Lobby] and there wouldn’t be a problem with that.” Respectfully, we disagree.

Little Sisters of the Poor is an international congregation of Roman Catholic religious women that exclusively employs people of the same religious tenets (and it has a legal right to do so). The guidelines covering contraception already do not apply to women who are beneficiaries in health plans sponsored by religious employers because those employers are exempt from the requirement under the federal guidelines. On the other hand, Hobby Lobby is not an actual religious organization. They are a private corporation that sells arts and crafts and they are asking the Supreme Court to allow any employer in the United States the right to make healthcare decisions for their employees by denying coverage of medical expenses based on personal religious beliefs. They want to claim that they are exempt from state and federal laws that ban discrimination by claiming that their religion allows them to (and therefore the law should, too).

Reading the transcript, you will quickly learn that this decision predominantly rests with the male Justices. Scalia, Alito, and Roberts are siding with Hobby Lobby. Although silent throughout oral arguments, because of their voting history, we can expect Thomas to decide for Hobby Lobby while Breyer stands united with women. Ginsburg, Kagan, and Sotomayor continuously poke holes in Clement’s argument, recognizing that the case has the potential to open the floodgates to litigation and a whole slew of discrimination.

And they are right. This decision risks having a sweeping domino effect onto low-income and LGBT communities (who disproportionately lack access to healthcare and are less likely to seek out medical treatment for fear of discrimination). By now you are well aware that on Tuesday, March 25th, the National Gay and Lesbian Task Force was in full force, rallying front and center at the Supreme Court of the United States to ensure the message “birth control is not my boss’s business” was heard loud and clear.

We can only hope the Justices heard us.