Tuesday, November 26, 2013

Supreme Court to Hear Religious Exemptions Cases

“He’s as decent as a minister!
He’s as sober as a judge!
He subscribes to ev’ry charity!
And his hobby’s making fudge!”

The Supreme Court announced today that it would hear a pair of cases challenging the ‘contraception mandate’ of the Affordable Care Act as applied to certain for-profit corporations owned by persons with stated religious objections to contraceptives.  Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialty Stores v. Sebelius will likely be heard in March 2014 and decided by the Court in June 2014.

Among the many things the Affordable Care Act does is require health care plans for employees to cover certain preventive health care services, which by regulation include a number of forms of contraception by women.  The same implementing regulations exempt non-profit religious organizations with objections to providing some or all contraceptive services, and they establish an alternative mechanism for their employees to have contraceptive coverage.  For-profit corporations, however, are not exempt.

Numerous suits have been filed in courts across the country to this coverage mandate; the ACLU has a useful and largely comprehensive summary here.  Plaintiffs have relied on a federal statute, the Religious Freedom Restoration Act (“RFRA), and the Free Exercise Clause of the U.S. Constitution, claiming that those entitle them to exemption from the coverage requirements to  which they religiously object.  Courts have split on these claims.  In the Hobby Lobby case, the U.S. Court of Appeals for the Tenth Circuit ruled that RFRA exempted both for-profit corporations (such as Hobby Lobby, which has some 13,000 employees) and the corporations’ individual owners from the federal coverage requirement.  In the Conestoga Wood case, in contrast, the federal appeals court for the Third Circuit held that neither the Free Exercise Clause of the Constitution nor RFRA shielded a for-profit, secular corporation, employer of about 950 people, or its owners from the obligations of the Affordable Care Act.  In that court’s view, for-profit, secular corporations do not have rights under the First Amendment or RFRA to the free exercise of religion.

The Supreme Court granted review in both cases, thus enabling it to address the scope of both the First Amendment’s guarantee of religious freedom and the extent of such freedom under RFRA, a federal statute passed by Congress to protect the exercise of religion more after the Court held that the Free Exercise Clause was not violated by neutral laws of general applicability, which here the government argues the Affordable Care Act’s coverage mandate is.  Although there is scant Supreme Court precedent for attributing religious exemption rights to secular, for-profit corporations, how this Court as constituted by the current Justices will likely rule is far from clear.  We may have to await oral arguments, probably in March, to get a better sense of how the Justices view this is

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