Monday’s the day. That’s when the suspense of the most-watched Supreme Court case this term is expected to abate. In the case, known as Hobby Lobby for short, the justices should finally settle whether a corporation can be religious and, if so, whether it deserves an exemption from Affordable Care Act requirements that all insurance plans cover contraception.
Hobby Lobby Stores is a big-box crafts chain owned by a family that objects to their employees’ health plan covering certain forms of contraception. They won their desired exemption at the appeals court, while the Third Circuit told the other plaintiff, Conestoga Wood Specialties, that corporations can’t be religious.
Their employees – Hobby Lobby has at least 13,000 of them -- won’t be the only ones affected by the ruling. Most immediately, there are 49 for-profit corporations that have gone to court for similar exemptions from the same coverage. But depending on how the court rules, there could be far-ranging implications for what corporations can do with that religious freedom, whether it’s refusing to cover a range of other employee benefits, or denying other people services for being gay.
The court could seek to avoid political controversy by finding a way to punt, but Brigitte Amiri, senior staff attorney at the American Civil Liberties Union's Reproductive Freedom Project predicts, “I think they’re going to look for a solution that resolves this issue as comprehensively as they can, because they know there are so many cases behind this.”
Here are some of the scenarios for how the court could rule on Monday. Be warned: We’ve been surprised before.
How Hobby Lobby could win
The court could affirm Hobby Lobby’s win at the Tenth Circuit, which wrote in its opinion, “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.” (How does the Supreme Court feel about corporate political expression? Two words: Citizens United.) Covering birth control or paying a fine, the court decided, counted as a substantial burden on that religious expression, which is the test set by the 1993 Religious Freedom Restoration Act, otherwise known as RFRA.
The Tenth Circuit also argued that because the Obama administration made exceptions for some insurers – including church plans and grandfathered plans, temporarily – the government doesn’t actually have the “compelling interest” it claimed. The Supreme Court could choose any or all of those rationales.
The next question would be how far the court’s exemption would sweep beyond Hobby Lobby and Conestoga. Could even large, publicly traded companies like Taco Bell and Wal-Mart claim religiosity to get out of complying with the law? At oral argument, Chief Justice John Roberts said that is a “question that we'll have to await [in] another case,” but added, “[that] sort of situation, I don’t think is going to happen.” So probably no Wal-Mart opt out – yet.
The court could rule even more narrowly than restricting exemptions to privately held companies – it could limit the exemption to companies that are as visible about their religious expression as Hobby Lobby or its sister company, a Christian bookstore, are.
How Hobby Lobby could lose
The Court could decide corporations aren’t religious people. The simplest way for the Obama administration to win is to get an answer like the Third Circuit gave in the Conestoga Wood case: If RFRA doesn’t even apply to for-profit corporations, the court doesn’t even have to evaluate whether Hobby Lobby’s rights are violated.
Unfortunately for fans of contraceptive access, in oral argument, corporate religiosity was practically taken as a given. And Justice Anthony Kennedy seemed particularly appalled by the government claiming corporations didn’t have religious liberty. “Under your view,” he said, “a [for-]profit corporation could be forced – in principle, there are some statutes on the books now which would prevent it but – could be forced in principle to pay for abortions.” Justice Kennedy invoking abortion terrified pro-choice observers, but at least Kennedy had made the medically accurate distinction between the contraception at issue and abortion. (Justice Roberts did not.)
The court could decide corporations have religious liberty, but that the coverage requirement doesn’t violate it. This is more complicated. Legal scholars have offered the court a few ways to reach that conclusion.
There’s no employer mandate, so there’s no substantial burden. The theory that five of the Justices seemed to take most seriously at oral argument was Martin Lederman’s, which is that there is no “substantial burden” on religious exercise at stake because the government isn’t forcing Hobby Lobby to provide health insurance in the first place – or as Lederman puts it, “there’s no employer mandate.” If there’s no government force, except paying a fine, there’s no RFRA violation.
Justice Kennedy seemed highly intrigued by this theory, which was introduced early on by the female Justices. “Assume hypothetically that it's a wash—that the employer would be in about the same position if he paid the penalty and the ... employee went out and got the insurance and that the employee's wages were raised slightly ... and that it's a wash so far as the employer [is] concerned,” he asked Paul Clement, arguing for Hobby Lobby. “Then what would your case be?”
The burden is too attenuated. The government has argued that what Hobby Lobby is being asked to do is not a substantial burden, because the employees are using their earned benefits, just as they would their wages.
There is a burden, but it’s offset by a compelling government interest. The Obama administration says there is a public interest in women’s health. It also argues that if Hobby Lobby gets its way, it will harm a third party – their employees. Law professor Frederick Gedicks has gone even further: He says if Hobby Lobby gets its exemption, the government would actually be forcing the employees to subsidize their religious beliefs, because they would pay more than employees of non-religious employers. Gedicks says that would violate the Establishment Clause.
At oral argument, there was some key interest in the fact that third parties – female employees – would be harmed. “How would you suggest we think about the position and the rights of the employees?” asked Justice Kennedy of Clement. He added, “In a way the employees are in a position where the government, through its healthcare plane is … allowing the employer to put the employee in a disadvantageous solution. The employee may not agree with these religious beliefs of the employer. [Do] the religious beliefs just trump?”
We are about to find out the answer to that question.