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.