This week, religious freedom is in the dock at the U.S. Supreme Court.Tomorrow, the United States Supreme Court will hear arguments in the case of Sebelius v. Hobby Lobby. In this lawsuit, the arts and crafts retailer is arguing that the Department of Health and Human Services (headed by that department’s Secretary, Kathleen Sebelius) is infringing upon their company’s right to free exercise of religion by forcing all businesses to provide coverage for abortifacient contraceptives as a requirement of the Affordable Care Act (aka Obamacare).
What’s the Story?
Hobby Lobby Stores, Inc. is a privately owned, closely held corporation. The company was founded by David Green in 1972, and he and his family continue to own and operate the business. As Christians, the Greens are morally opposed to so-called “contraceptive” drugs that actually function as abortifacients (killing a formed embryo rather than preventing conception). As a result, Hobby Lobby has never provided its employees with coverage for these drugs under its employee health insurance plans.
Through the provisions of the 2010 Patient Protection and Affordable Care Act (otherwise known as the “Affordable Care Act,” the “ACA,” or “Obamacare”), the Secretary of Health and Human Services was able to specify certain items that must be covered by insurance plans; some of these items identified for mandatory coverage were the kinds of contraceptive products to which the Greens objected.
As a result, the Greens have decided to sue the federal government on the ground that the regulation forces them to violate their religious beliefs, and thus is in violation of their rights to freedom of religion. They are suing under the Religious Freedom Restoration Act, a law passed under President Clinton in 1993. It essentially requires a test of “strict scrutiny” to be used in evaluating the legality of a governmental action that burdens a person’s exercise of religion. To meet the “strict scrutiny” test, the government must show that the governmental action was the least restrictive means available for achieving a “compelling” government interest.
This current lawsuit has worked its way through the courts since being initially filed in federal court in Oklahoma in 2012. The United States District Court for the Western District of Oklahoma ruled in favor of the government by holding that Hobby Lobby, as a corporation rather than a “natural” human person, was not entitled to religious freedom protections under the RFRA. The Tenth Circuit Court of Appeals held that Hobby Lobby was a “person” under the law, and thus reversed the District Court ruling because of the heavy financial burden (in terms of penalties and potential liability) that would be placed on Hobby Lobby if it did not comply. This burden, it ruled, did not face strict scrutiny.
The decision has now been appealed to the Supreme Court, which will hear oral arguments on the case this week. The outcome of this case will have profound implications for the 93 other cases that have been filed by for-profit and non-profit entities against the federal government’s contraceptive mandate.
Why Should I Care?
The direct focus of this case is whether or not individual, private, for-profit business owners will have the right to run their businesses in accordance with their consciences, should they be morally opposed to providing contraceptives and/or abortifacient contraceptives to their employees. Essentially, if the government wins, it would put orthodox Christians, particularly Catholics, into the difficult position of having to choose between violating their consciences or violating the law.
Beyond these issues, however, it presents a kind of broader argument about what kind of entities we want for-profit businesses to be. Some, out of a reflexively anti-big-business mindset, have instinctively argued that businesses are not persons, and that they absolutely cannot and do not have any right to freedom of religion. The idea that businesses (perceived as inherently ruthless, strictly-profit-oriented enterprises) should get any more rights and privilege than they already have is often perceived as making the rich richer and the fat fatter.
In reality, though, corporations are composed of, owned by, and operated by people. Certainly the definition of a corporation as a legal person is a kind of fiction of the law, but it is a fiction that serves an important purpose: it allows individuals to participate more readily in commerce by limiting their personal liability to the amount of capital they have invested in their business. It is a critically important means by which individuals enter into and participate in public life. As such, a corporation is a genuine expression of individual action, not simply a money-making automaton.
To rule that a private business has no rights of religious liberty does not simply restrict businesses. It restricts individuals, and it restricts the rights of those individuals to express their legitimate, sincerely held moral or religious convictions in their public lives as well as their private lives. To restrict those rights for the sake of providing people with contraceptive drugs that cost as little as $15 per month, and which are already widely and easily available to anyone who desires them, would be a genuine tragedy.
Finally, to argue that corporations should not have legally-protected rights to religious freedom is simply to confirm the worst, most ruthlessly capitalistic aspects of corporate culture. As Notre Dame law professor and religious liberty scholar Rick Garnett has argued, “At a time when we talk a lot about corporate responsibility and worry about the feeble influence of ethics and values on Wall Street decision-making, it would be strange if the law were to welcome sermonizing from Starbucks on the government shutdown but tell the Greens and Hobby Lobby to focus strictly on the bottom line.”
Thus, the results of the Hobby Lobby case will have far-reaching implications not only for those affected by the contraceptive mandate, but for all who believe that the exercise of their deeply held religious and moral beliefs should be protected in public life as well as in private. Ultimately, the Supreme Court must decide whether freedom of religion extends beyond the walls of churches on Sunday mornings.
John V. Gerardiis a graduate of the University of Notre Dame and Not
re Dame Law School. He currently works as an associate for a law firm in Massachusetts. He writes on issues relating to law, politics, and ethics for online journals such as Aleteia, Ethika Politika, and his own personal blog, johnvgerardi.wordpress.com.
