July 2, 2014

The Hobby Lobby impact: A Q&A

Robert Tuttle, George Washington University
Robert Tuttle, Berz Research Professor of Law and Religion, George Washington University

The U.S. Supreme Court decision allowing for-profit businesses to opt out of the contraceptive mandate in the new health care law has raised questions about what the ruling might mean for businesses, for future challenges to the contraception mandate, and even for the future of church-state law. We posed these questions to Robert Tuttle, one of the nation’s experts on church-state issues. He is the Berz Research Professor of Law and Religion at the George Washington University, and is a Pew Research Center consultant.

1) Are there other aspects of the Affordable Care Act that are likely to face religious-liberty challenges? If so, does the Hobby Lobby decision support those challenges?

Alito’s opinion, and Kennedy’s concurring opinion, repeatedly stress the narrow scope of the decision. Both justices say the ruling applies only to coverage of contraceptives, not to other health care services that might also face religious objections. At the same time, it’s not hard to imagine a business owner having a sincere religious objection to subsidizing coverage of particular treatments – such as blood transfusions, which are opposed by Jehovah’s Witnesses – or to traditional health care in general. 

But in Hobby Lobby, the court limited the ruling to contraceptives alone because the government already has an accommodation for religiously affiliated nonprofits that object to covering contraceptives. This accommodation allows nonprofits with religious objections to leave contraception coverage out of their employee insurance plans. Their insurance company is then required to offer and pay for separate policies for female employees who want free contraception.

Kennedy wrote that the government has this alternative for non-profits and that it failed to show why it could not also apply the alternative to for-profit firms like Hobby Lobby. Therefore, according to Kennedy, the government can’t credibly argue that it should not have to accommodate businesses that object on religious grounds to providing contraception. The same would not be true for something like a blood transfusion, where no such alternative currently exists.

2) That alternative for nonprofits is currently facing a legal challenge of its own in lawsuits brought by the Catholic charity, Little Sisters of the Poor, and hundreds of other religiously affiliated nonprofit organizations. Does Hobby Lobby offer any hints as to how the court might rule in these nonprofit cases?

It’s always difficult to predict how the Supreme Court will rule in a particular case, and Alito’s majority opinion explicitly declines to address the questions raised in the nonprofit cases. However, Kennedy’s repeated reference to the availability of the existing alternative for nonprofits may imply that, of the five conservatives who formed the majority in Hobby Lobby, he would be willing to uphold the alternative and thus reject the legal challenge by the religious nonprofits that currently are covered by it.

3) The Supreme Court ruled that the Hobby Lobby decision applied only to “closely held” companies. But Justice Ginsburg, in her dissent, predicted that all businesses will ultimately be able to bring religious challenges. Is this a real possibility?

The high court’s decision focuses on closely held corporations. At the same time, there is nothing in the logic of the decision that limits what type of business can bring a claim under Religious Freedom and Restoration Act. It is possible that a corporation of any size or type could bring such a claim, but it’s difficult to see how a corporate entity with dispersed ownership (of say, thousands of shareholders) and a separate management will possess the required unity of religious purpose needed to prove that it has a sincere religious objection. So even though larger, publicly held corporations might be theoretically capable of raising claims under RFRA, the practical obstacles are likely to be insurmountable.

4) What kinds of new business-related lawsuits could arise as a result of this decision?

Once the contraceptive mandate issues have been resolved by courts, the next wave of disputes is likely to involve employers who object on religious grounds to paying benefits to the same-sex spouses of employees. Unlike with the contraceptive mandate, however, these businesses may have a tougher time prevailing. First, a different majority of the court may well determine that discrimination against employees imposes a different and more serious cost on them than the denial of coverage for contraceptives. In addition, the court may look differently on these claims, since the government has no readily available alternative to providing same-sex spouses with the benefits denied by the employer.

5) Outside of business issues, how could this decision influence the broader law of religious accommodation going forward?

When it had an opportunity in Hobby Lobby to impose a limit on religious accommodations, the Supreme Court reaffirmed the importance of such accommodations. Nonetheless, it is far from certain how much encouragement the Hobby Lobby decision will give to those seeking similar accommodations. In particular, the court’s emphasis in Hobby Lobby on the existence of a readily available alternative may limit the broad impact of the decision. At the same time, the court’s relatively generous interpretation of the federal RFRA (which only applies to federal government actions) may influence state courts to provide equally generous interpretations of their own state RFRA statutes, and offer an unexpected boost to those challenging state or local laws that burden religious liberty.

Topics: Health Care, Supreme Court, Church-State Law

  1. Photo of David Masci

    is a senior writer/editor focusing on religion at Pew Research Center.


  1. ShellB3 years ago

    The Religious Freedom Restoration Act was meant to protect individuals, not for-profit corporations. If corporations are to be considered “people”, then let them pay taxes like people and follow the same rules. We are mixing apples with oranges and giving the oranges the same rights and treatment as the apples.

  2. Nadine Burton3 years ago

    It’s interesting to see how this decision.will shape the future of religious freedom and the influence it has on the business sector (or not).

    Thank you.

  3. BobSmith3 years ago

    Thanks so much, Pew, and Professor, for a sober and expert overview of the decision. It was in my small part of pop-culture, missing.

  4. W. Dust3 years ago

    I don’t think you understand healthcare and contraception. Also, by your reasoning, someone who goes rock-climbing or off-roading ought to pay for consequent injuries out-of-pocket.

    Contraceptives are not just used to avoid pregnancy. Oral contraception reduces the risk of ovarian and endometrial cancer and relieves the symptoms of endometriosis, Polycystic Ovarian Syndrome, and other hormonal disorders. If you don’t know a lot of women who experience these health issues, you haven’t asked.

    In addition, contraception is widely used in monogamous relationships as a form of family planning. An estimated 99% of sexually active women have used contraception.

    Health insurance is not just to protect against uncontrollable or unexpected medical expenses. Health insurance covers preventative care, including vaccinations and regular screenings/tests for conditions such as breast cancer, prostate cancer, brain tumors, and food allergies. Health insurance also provides coverage for addiction counseling and rehab. Whose fault is the addiction? I’m sure addicts would love to hear your perspective.

    If you really want to know what health insurance is intended for, take a look at your own plan.

  5. Armando Rendon3 years ago

    I believe you meant to say at the end, “state or local laws that some groups may claim burden religious liberty.

  6. 1jerseyboy3 years ago

    Health insurance is intended to protect people against uncontrollable or unexpected medical and accidental expenses. If a person doesn’t like their face and wants to get a facelift, that is considered “elective” and is not covered by any insurance.

    The same thing should apply to contraceptives: If a female has unprotected sex and gets pregnant, that is an “elective” occurrence and the public should not be forced to pay for her mistake. If she can’t afford the contraceptives, there are still measures to protect from unintended pregnancy, most notably by simply saying NO.

    1. raul endometrial3 years ago

      don’t forget…..Men can say no too!

    2. ShellB3 years ago

      Preventative Health Care is not elective. Preventative Health Care saves us all money, if that’s your concern. Also, the Religious Freedom and Restoration was to protect individuals, not for-profit corporations. If Corporations are people, let them pay taxes like people and follow the same rules as people. You can’t have your cake and eat it too.

  7. Millie3 years ago

    I think pro-choice is when you chose to open your legs, you choose to take someone’s life away through abortion and you choose not to give the father a choice in destroying his unborn child. That is pro choice. No choice no protection of that unborn child.

  8. stan runnels3 years ago

    A question for Professor Tuttle:
    In the majority opinion, we learn that that “sincere Christian beliefs” and “honest (religious) conviction” are sufficient grounds for the Court to consider it necessary to protect the religious liberty and the free-exercise rights of the humans who control “closely held corporations.” However, the Court also points out that “any exercise of religion, whether or not compelled by, or central to, a system of religious belief” is sufficient. Since the Court claims no right to distinguish between “beliefs” or “convictions,” it would appear the “person” can declare whatever it wants to be religious. The Court is not interested in being the arbiter in matters religious content. Consequently, John Q. Hobby can assert whatever “sincere Christian belief” he/she/it wishes and the Court is obligated to accept it as a “sincere Christian belief” or “honest (religious) conviction” without question. This suggests, for those traditions that have ecclesial magisterium of one sort or another, the individual has legal sanction to assert whatever faith/religious value they want and attribute it to whatever faith tradition they want and the Court is obligated to accept it without validation by the magisterium of the tradition claimed.
    For example, a local construction company in my neck of the woods (one of the largest in the country and a “closely held corporation”) announced subsequent to the SCOTUS Hobby Lobby decision its intent to exercise it religious prerogative and limit or eliminate birth control from its health insurance. They claim their “sincere Christian belief” based upon the teaching of their Roman Catholic faith. This same company has contracts with the US government to build nuclear weapons manufacturing facilities (a $450 million project). In their public statement re: birth control, they claimed they should not be required to participate even indirectly by providing medication that could result in the death of an embryo. When it was pointed out that the Roman Catholic faith they claimed as basis for this position maintains a well-documented, faith-based moral opposition to nuclear weapons, the company stated, “(We have) a long history of working with the federal government, including building military facilities. However, electing to work with the government in that regard is different than complying with a mandate to provide abortifacients.” As best I can tell, the difference is not one of “sincere belief” or “honest convictions,” but one of dollars. However, based upon my read of the HL decision, the Church (in this instance, the Roman Catholic Church) would have no right to suggest to the Court these inconsistencies at least cast doubt on the “sincere Christian belief” and the “honest (religious) convictions” of the “closely held corporation.” Does this ruling not depreciate the idea of religion as a corporate expression of a cohesive and well-developed moral and ethical value system based upon a collective experience of the holy and replace it with a highly individuated, situationally-driven ethic, with no requirement for the “closely held corporation” to provide any validation of its “sincere Christian belief” or “honest (religious) convictions outside its own opinion or authority? (I recall in the Vietnam era, one claiming conscientious objector status on religious grounds had to bring in some validation from a representative of the faith tradition that CO status was consistent with the teachings of the faith tradition—apparently no such validation would be needed).

  9. Edd Doerr3 years ago

    The Hobby Lobby ruling expanded religious liberty for corporations, unmentioned in the original RFRA Act, and a few employers, but shrank the religious liberty and rights of conscience of countless employees. On balance, the ruling was a setback for religious freedom and an augmentation of the conservative religious was on women. — Edd Doerr, President, Americans for Religious Liberty (arlinc.org)

  10. Susan Sered3 years ago

    The SCOTUS ruling begs the question of who has the power to decide what counts as religion (as opposed to cult, heresy, spirituality, sect, etc.)
    I just posted a piece discussing the implications of that: susan.sered.name/blog/morality-h…

  11. W. Dust3 years ago

    One issue I have not yet seen addressed is: to whom do employee benefits and compensation belong? Are they equivalent to “payment for services rendered” or are they privileges bestowed upon an employee by an employer and thus subject to employer regulation? Hobby Lobby does not want to “pay” for contraceptive coverage, but if that is the case, they should remit the cost of this coverage to their employees as of June 30. In other words, if the benefits are considered part of the employee’s earnings, then Hobby Lobby’s religious identity and associated religious objections to insurance coverage are irrelevant. They certainly can’t stop an employee from binge-drinking and utilizing coverage for rehab and counseling!

  12. Carol Kinney3 years ago

    Thank you so much for publishing an intelligent and objective overview of the case and the Supreme Court ruling. I have been frustrated by the lack of objective journalism in this case and find your article refreshing and educational.

  13. John King3 years ago

    Is it possible that the Hobby Lobby decisions opens the door to litigation which explores the legitimacy of religions/ factions of religions or their beliefs? There are orthodox factions of virtually every religion that hold more strident positions. Some people follow belief systems like Scientology that are not universally recognized as a religion. If we the court establishes a precedent or a means test to determine the validity of a less popular or younger religion; does it allow for the challenging of the more universally accepted ones i.e. Christianity. Isn’t the first litmus test the recognition of the religion of the company?

    Legally, a company can deny coverage based on 1. It is closely held (relatively straight forward) 2. It has a religious identity and 3. There is a sincere religious objection. Seems to me, that someone who wants to compel coverage could argue that either the religion is invalid; or the doctrine the objection is based on is invalid thereby rendering the companies claim to relief moot.

    An ironic outcome of defending religious liberty would be our courts ruling on which religions/doctrines are valid and which ones are not.