Why Hobby Lobby Should Lose

Precedent says the Supreme Court should uphold Obamacare's contraception mandate.

The Associated Press

Obama's mandate is right to stop short of exempting for-profit companies.

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Yesterday the Washington Post published an op-ed by evangelical leader Rick Warren in which he stated his opposition to the contraception mandate in the Affordable Care Act. That mandate is at the heart of two cases the Supreme Court will hear today, Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius. Both cases revolve around the same issue: Can the owners of for-profit businesses refuse to follow legislation that conflicts with their personal religious beliefs?

Warren’s answer is a resounding yes. Though he notes that Hobby Lobby is “a multibillion-dollar business with more than 550 stores and nearly 16,000 full-time employees,” he argues that it is “not a secular, publicly traded company,” but “the personal, purpose-driven mission of one of the most devout families I’ve ever met.” In the space between those claims, Warren deftly elides the business and the family. That same elision will take place in oral arguments as lawyers for Hobby Lobby and Conestoga Wood ask the court to “pierce the corporate veil” and see the people behind it.

Warren roots his claim in the First Amendment, arguing in essence that the free exercise clause extends not just to flesh-and-blood persons but corporate persons as well. It’s the sort of argument today’s Supreme Court could go for, given that they’ve already extended another part of the First Amendment (free speech) to corporations.

[See a collection of political cartoons on the Catholic contraception controversy.]

But the space between actual people and fictional people – between humans and corporations – is even more significant in the religious freedom realm. The administration has bent over backwards to accommodate the exercise of personal freedoms. As a Mennonite, the owner of Conestoga Wood can easily obtain an exemption from the Affordable Care Act's individual mandate. Non-profit religious organizations to which he belongs? Also exempt. But his for-profit corporation has no such right, and indeed has legally mandated obligations to its employees.

There’s plenty of precedence for these distinctions. At the top of the list: the Civil Rights Act of 1964, signed into law 50 years ago this July. Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, religion, sex, and national origin. In deference to religion, however, it carves out exceptions for religious organizations, just as the Affordable Care Act does. In the case of the Civil Rights Act, religious organizations are allowed to have religious preference in hiring. Likewise the health care law allows non-profit religious organizations to waive their contraceptive-coverage obligations (the subject of a separate set of legal challenges).

Both laws stop short, though, of extending those exemptions to for-profit companies. They distinguish between, say, Catholic organizations, and corporations whose owners are Catholic. And they are right to do so. That distinction abounds in American society. Religious organizations are tax-exempt; for-profit corporations, no matter how devout the people in charge, have to pay taxes. (In theory, anyway: a number of multi-million dollar corporations don’t pay taxes.)

[See a collection of political cartoons on Obamacare.]

Given the current composition of the Supreme Court, it’s difficult to predict the outcome of these cases. Precedent suggests the Court should side with the government. The case law here, Employment Division v. Smith, was an opinion written in 1990 by Justice Antonin Scalia, who stated, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” A reversal here would mean Scalia extends more protection to corporations in 2014 than he granted to individuals in 1990. Of course, it’s Scalia, so that’s entirely possible.

While the outcome of these cases is uncertain, two things are clear. First, religious freedom is emerging as the principal framework for conservative opposition to liberal legislation, something we are likely to see much more of in the coming years. And second, despite surviving 50-odd repeal votes and a major court challenge in 2012, five years after its passage the future of the Affordable Care Act remains insecure.