Tag Archives: Contraception Mandate

Constitutional Scholars’ Brief in Hobby Lobby

I was pleased to join this amicus brief filed by several constitutional law scholars in the Hobby Lobby/Conestoga Wood litigation (thanks to Nathan Chapman for taking up the pen). The brief argues against the view that the Establishment Clause prohibits an accommodation of the religious claimants. My own views on the matter, reflected in various portions of the brief, are also contained here and here. A post by Kevin Walsh raising an important problem is here. Opposing views may be found here, here, and here. Here is the Introduction and the Summary of the Argument of the amicus brief:

This brief argues that the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (RFRA), properly applied, complies with the Establishment Clause. The brief responds to the recent proposal by several scholars that the Establishment Clause prohibits the government from accommodating “substantial burdens” on religious exercise, as RFRA does, when the accommodation imposes “significant burdens on third parties who do not believe or participate in the accommodated practice.”2 This brief does not address the issues directly before the Court, i.e., whether RFRA protects for-profit corporations like Hobby Lobby and Conestoga Woods, and whether either of those parties has a valid RFRA claim.3

The scholars’ proposed doctrine is contradicted by precedent, would needlessly require courts to analyze three speculative Religion Clause questions in most religious accommodation cases, and would threaten thousands of statutes that protect religious minorities.

First, precedent strongly supports the constitutionality of statutory religious accommodations, like RFRA, that allow courts to weigh the government’s “compelling” interests against claimant’s interests in religious exercise.

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Supreme Court Order Keeps Injunction in Place in Little Sisters Case

The Supreme Court has issued the following order in the case of Little Sisters of the Poor et al. v. Sebelius:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

It’s always hard to interpret all that much from an order as short as this, but a few things are clear.

First, the injunction stays in place. The Little Sisters can just send the government a copy of their complaint. Second, and notwithstanding the final sentence of the order, at least some of the Court seems to have understood the Little Sisters’ argument–that is, that signing the certification and designation of a third party administrator to provide contraceptive products is a violation of their religious liberty under RFRA. If the Court had not understood it, or had disagreed with it, the injunction would not have remained in place. Third, and in consequence, this order represents another victory, albeit a cryptic one and one of uncertain duration, for the plaintiffs in these nonprofit cases.

American Freedom and Catholic Power

It was only a matter of time before this sort of thing was bound to appear, though perhaps it is somewhat disappointing to see it in the pages of US News and World Report. The specific claim seems to be that by granting an emergency stay in the Little Sisters of the Poor case, Justice Sotomayor is waging a “war on women” because she is imposing her Catholic views on the rest of the nation in violation of the law. But that claim is buried within lots of other mud, and I’m afraid I can’t do justice to it without letting much of the rest hatch out:

The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year’s Eve in Times Square. Or maybe she’s just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let’s be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing….

Sotomayor’s blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions. Especially if “you” are female. This is not true of all Catholics – just look at House Democratic Leader Nancy Pelosi. But right now, the climate is so cold when it comes to defending our settled legal ground that Sotomayor’s stay is tantamount to selling out the sisterhood. And sisterhood is not as powerful as it used to be, ladies.

Catholics in high places of power have the most trouble, I’ve noticed, practicing the separation of church and state. The pugnacious Catholic Justice, Antonin Scalia, is the most aggressive offender on the Court, but not the only one. Of course, we can’t know for sure what Sotomayor was thinking, but it seems she has joined the ranks of the five Republican Catholic men on the John Roberts Court in showing a clear religious bias when it comes to women’s rights and liberties. We can no longer be silent about this. Thomas Jefferson, the principal champion of the separation between state and church, was thinking particularly of pernicious Rome in his writings. He deeply distrusted the narrowness of Vatican hegemony.

Now, as it happens, I am Catholic. And, as it also happens, on the legal merits, I am persuaded that the statutory argument in favor of the Little Sisters of the Poor as to the issue of accommodation of non-exempted nonprofits is strong–stronger than the arguments the government advances. I also believe that a strong free exercise clause claim can be made in light of the individualized exemptions that have been meted out, though to date this argument is generally not being made. These are all legal claims, and so to the extent that any judge agrees with these claims, it would seem to me that they are putting the law first in ruling as they do. Others disagree with my legal views, and they, too, are putting the law first. They are acting and speaking appropriately about their views of the law–in good faith and by their best lights. I think it is a terrible error to believe that anytime a person disagrees with one’s legal views, the reason must be that they are acting in bad faith.

I will say that outside of the legal fight, and as to larger political questions, I do not see why exempting the members of “a nunnery” (as the author so tenderly puts it) from the compulsion to be provided with free access to contraception would constitute a Catholic war on women. I am informed that the members of the Little Sisters of the Poor are women. They seem not to want these products. I don’t believe anybody is waging a war on anybody else; it degrades the horror of war to speak in these terms. And yet, if anyone is conducting a hostile campaign against women, it is those seeking to compel these women to do what they don’t want to do.

Furthermore, if the author were even marginally more serious about providing evidence for her claims, she might have investigated how many of the other judges who have granted injunctions in these cases–18 other such courts, by my current count, and more judges than that–are Catholic. If they are all Catholic, is it also her view that they are all imposing Catholicism on the nation in violation of the law? If they are not all Catholic, what explains their legal findings? Are they all imposing their non-Catholic religious views notwithstanding the law? What if some of the judges who granted injunctions have no religious affiliation? Are they also imposing their non-religious views in finding for the Little Sisters? Or is it only when a judge is Catholic that it can be assumed that she is imposing her views? And what about the judges who denied injunctions? Are any of them Catholic? If they are not, are they imposing their views on the rest of us too? If they are Catholic, I suppose one could claim that they are the good sort of Catholic—Catholics like Nancy Pelosi, as the author puts it–judges who don’t impose their views at all. Still, it would be useful to have this information in order to assess the cogency of the claims.

I recognize that for people who write columns like this one, arguments of this sort are not likely to be persuasive. Indeed, once Ms. Stiehm identifies the source (me), she will surely dismiss out of hand anything that follows without bothering to read it. That is regrettable, but it follows directly from the reality that Ms. Stiehm is not really interested in law or argument at all. She’s interested in rhetoric; unfortunately the rhetoric that interests her is sloppy and misinformed.

Here is a different uncomfortable reality that columns like this should compel us to face. The long history of American hatred of Catholics is alive, and well, and flourishing. It is kept in fine and proud form by people like this, and given space to breathe in all kinds of prominent venues. It will intensify in the months and years ahead. Dark times are coming.

Contraception Mandate “Accommodation”: The State of Play

Both because of the fast pace of the developments (lots of action before the new year) and because of the holidays, I am behind on reporting the state of play with respect to the contraception mandate litigation concerning non-profit entities that have not been exempted by the government. Such entities, as I noted here, have received the government’s so-called “accommodation,” which requires that they certify to the government their religious objections to the mandate. There are special rules for “accommodated” self-insured non-profits who self-certify, which details are discussed in full here. Note finally that these suits are distinct from the question of for-profit challenges to the contraception mandate, which the Supreme Court will take up shortly in the Hobby Lobby and Conestoga Wood litigation.

The Becket Fund reports that the tally now stands at 19-1 in favor of the challengers and against the government. Here’s a breakdown which elaborates a little bit on the present procedural posture of the cases (of course with the caveat that the situation is fluid and that I may well have missed additional cases or changes to the cases I list).

I. Number of cases in which an injunction has been issued at the district court level, or where denial of an injunction at the district court level has been overturned by an appellate court (Court of Appeals or United States Supreme Court), barring enforcement of the contraception mandate against “accommodated” entities: 19.

1. E.D.N.Y. (RC Archdiocese v. Sebelius)

2. W.D. Pa. (Zubik v. Sebelius)

3. W.D. Pa. (Persico v. Sebelius)

4. W.D. Pa. (Geneva College v. Sebelius)

5. D.D.C. (as to Thomas Aquinas College in Roman Catholic Archbishop of Washington v. Sebelius)

6. N.D. Indiana (Diocese of Fort Wayne v. Sebelius)

7. N.D. Indiana (Grace Schools v. Sebelius)

8. S.D. Texas (East Texas Baptist University v. Sebelius)

9. W.D. Oklahoma (Southern Nazarene University v. Sebelius)

10. W.D. Oklahoma (Reaching Souls International, Inc. v. Sebelius)

11. E.D. Mich. (Legatus v. Sebelius)

12. E.D. Mich. (Ave Maria Foundation v. Sebelius)

13. E.D. Missouri (CNS Int’l Ministries v. Dept. of HHS)

14. E.D. Tex. (Catholic Diocese of Beaumont v. Sebelius)

15. N.D. Tex. (Catholic Diocese of Fort Worth v. Sebelius)

In an additional three lawsuits, district courts had ruled against the religious claimants. But circuit court decisions have reversed those findings and granted emergency motions for injunctions pending appeal (which requires a finding of likelihood of success on the merits as well). Those are:

16. D.C. Circuit (Priests for Life v. US Department of Health and Human Services)

17. Sixth Circuit (Catholic Diocese of Nashville v. Sebelius)

18. Sixth Circuit (Michigan Catholic Conference v. Sebelius)

Finally, in one law suit, both the district court and the Tenth Circuit had denied injunctive relief. But Justice Sotomayor granted emergency injunctive relief on December 31, 2013. The government has now filed its brief and the religious claimant (the Little Sisters of the Poor) has filed its reply:

19. United States Supreme Court (Little Sisters of the Poor Home for the Aged v. Sebelius)

II. Number of cases in which an injunction has been denied at both the federal district and circuit court levels: 1.

1. N.D. Indiana and Seventh Circuit (University of Notre Dame v. Sebelius)

What is the “Church Plan” Issue?: An Explanation from Matt Bowman

In response to my post on the Eastern District of New York’s decision striking down the contraception mandate, and specifically my statement and questions about the third party administrator issue noted at the end of that post, reader Matt Bowman (with Alliance Defending Freedom, which represents Conestoga Wood) wrote me with the following helpful explanation (posted with his permission). If others have more information about the “church plan” issue, I’d welcome it, as it has been insufficiently considered.

As background, self-insured plans by religious non-profit entities have to fill out a different kind of “certification” under the final regulation’s “accommodation.” Their certification doesn’t merely declare a religious objection.  It doesn’t even merely mean that upon that certification, as you say, the TPA “assumes the obligation of providing the objected-to products to the employees.” The self-insured certification contains language that specifically designates the TPA to provide the objectionable coverage (also described as promised “payments”). The final regulation even points out that this added language is legally operative: the designation words themselves are what cause the TPA’s obligation to go get the coverage. Without the designation telling the TPA to go get that coverage, the TPA wouldn’t have any duty to be involved. The designation has legally operative power because of preexisting rules in ERISA. So it’s important to observe that for self-insured religious non-profits, there’s a “certification,” but there’s also a “designation”….This designation requirement also gives lie to the government’s mantra that religious non-profits don’t need to “contract or arrange for” objectionable coverage. The designation is, by definition, an act of contracting and arranging for the coverage….Because the designation constitutes legal “magic words,” the regulation goes on to specifically censor self-insured religious groups, by banning them from engaging in additional speech towards their TPAs to persuade them not to provide the objectionable coverage, for fear that such evangelical speech might negate the designation’s magic words. Finally, the regulation tells TPAs that if they get a self-insured certification+designation, and if they provide the birth control coverage, they will get reimbursed plus 10%.

In this context, the government has recently dropped somewhat of a bombshell into the non-profit lawsuits. It has declared that [it] didn’t realize until now that [its] penalty on TPAs does not apply in a “church plan,” because church plans are exempt from ERISA. (It’s important to note that “church plans” are not the same as a church’s plan. A church, which is exempt from the mandate, might have an insurance plan. But “church plans” are a defined category that enroll thousands of non-exempt non-churches, like universities, hospitals, charities, etc., who merely share a religious affiliation.) The government’s revelation has led to bizarre results. The government insists that entities enrolled in self-insured church plans must still file their designations, which contract and arrange for their TPA to obtain the exact coverage the organization objects to. But the government admits that the designation is false: it does not, as claimed on the face of the language, actually trigger ERISA duties on a church plan’s TPA, because these plans are exempt from ERISA.The designation does, however, trigger the TPA’s reimbursement plus 10% if they choose to cover the items. And the government vaguely says it will consider “fixing” this oversight (three years, six regulations, and 1 million public comments later). Of course all of this could have been “fixed” and avoided if religious objectors were exempt at the outset.

The impact of this revelation was on grand display in the EDNY case.

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EDNY: Contraception Mandate Violates RFRA

The United States District Court for the Eastern District of New York has issued a decision holding that the HHS contraception mandate violates the Religious Freedom Restoration Act (see here for a previous post on this case). Certain plaintiffs in the case are Catholic non-profit organizations that qualify for the “accommodation” offered by government. Other plaintiffs are Diocesan–the lead plaintiff is the Roman Catholic Archdiocese of New York–and qualify for the exemption. All plaintiffs are self-insured. The exempted plaintiffs’ claims were dismissed.

The remainder of this post will focus on the non-exempted but “accommodated” plaintiffs (for more on exactly who falls into this group, see Points 2B and 3 in this post), whose claims succeeded. The government’s “accommodation” is to allow non-exempted non-profits to fill out a self-certification indicating that they have religious objections to providing the objected-to products to their employees. In the case of self-insured, non-exempted non-profits (such as these plaintiffs) the government demands that such organizations notify a third-party administrator (TPA) of their self-certification, at which time this TPA assumes the obligation of providing the objected-to products to the employees (there is an important wrinkle here that I will note at the end of this post).

In granting the plaintiffs’ motion for summary judgment, the court first held that plaintiffs satisfied the substantial burden prong of the RFRA test. In so holding, it applied a “substantial pressure” standard to evaluate whether plaintiffs suffered a “substantial burden”: “Rather than whether the pressure is indirect or direct, it seems that the more important distinction for the case at bar is between government action that pressures an individual to act inconsistently with his beliefs, and government action that discourages a plaintiff from acting consistently with those beliefs.” The court held that the self-certification requirement imposed by the “accommodation” on non-exempted non-profits was a substantial burden and rejected the government’s proposed test that a court should evaluate whether the burden was “de minimis” or should evaluate whether the self-certification is “too attenuated” to constitute a substantial burden.

The court also found that the government had not provided a compelling interest in mandating contraception coverage in the fashion it has selected. The government offered “the promotion of public health, and ensuring that women have equal access to health-care services” as its compelling interests. Though the court accepted these interests as important in the abstract, it rejected the government’s claim that granting exemptions to these plaintiffs would undermine the government’s ability to administer its regulation so as to achieve its aims uniformly.

Critically, it distinguished United States v. Lee–a case rejecting an Amish plaintiff’s request for exemption from paying taxes into Social Security–on the ground that the whole contraceptive mandate system would not collapse if exemptions were granted in these cases and the government’s application of the mandate is not uniform. Lee is a case on which proponents of the mandate have been placing great emphasis, but the death spiral dynamics at issue in Lee do not seem present here, in large part because of the government’s own exemptions. Here is the key language from the decision:

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Does RFRA’s Least Restrictive Means Test Violate the Constitution?

Those pressing the claim that an exemption in the contraception mandate cases before the Supreme Court would violate the Establishment Clause face a few challenges–doctrinal, textual, and historical. The one that interests me in this post is that the test they favor is in considerable tension with the RFRA framework. Under the interpretation of the Establishment Clause being pressed, it seems to me that the least restrictive means test that represents the third prong of the strict scrutiny standard in RFRA and RLUIPA is constitutionally suspect.

Recall the theory: religious accommodations are unconstitutional if they shift “significant burdens” onto a “focused and identifiable class of third parties.” For the moment, leave aside the “focused and identifiable” component. We know that under RFRA, the religious claimant must allege a substantial burden on religious exercise. If it does so, the burden shifts to the government to show that the substantial burden on religious exercise it has imposed is justified by a compelling governmental interest. But the government must also show that it is using the least restrictive means to achieve its interest. So, for example, the government cannot simply say that the contraception mandate is supported by its compelling interest in good health care, full stop. Its statement of its interest is invariably focused and refined by the need to demonstrate that it has used the narrowest means available–that means which least burdens the religious claimant–to achieve its interest. And the least restrictive means component of the RFRA test is, in fact, one of the points on which it has been argued that the government’s case for the contraception mandate is weakest.

Suppose one accepts the claim that any “significant” burden resulting from cost shifting onto third parties triggers an Establishment Clause claim (again, for the moment, set to the side the question of what constitutes a “focused and identifiable” group). It seems to me that one would also be saying that the least restrictive means test is at least presumptively constitutionally suspect. The more narrowly tailored a means is so as to avoid burdens on religious objectors, the more probable it becomes that the means selected will burden third party interests. There may perhaps be rare occasions when an accommodation imposes no costs at all on third parties. But very often this will look like a sliding scale: as the imposition on the religiously burdened party decreases, the imposition on third parties increases. And by the time that one gets to the least restrictive means, the sliding scale is very much calibrated against the third party interests. By that point, it will have become highly probable–in some cases verging on certain–that the means chosen will impose “significant” burdens on third parties.

Take these cases.

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On the Claim That Exemptions From the Contraception Mandate Violate the Establishment Clause

I am glad to see that in the wake of the cert. grants for Hobby Lobby and Conestoga Wood, there has been a frothing up of interest in the issues presented by these cases, issues that we here have been discussing for quite some time at CLR Forum. In this post, I want to address one such new claim.

Professors Nelson Tebbe and Micah Schwartzman (T&S) recently argued that an exemption from the contraception mandate under RFRA for employers like Hobby Lobby or Conestoga Wood would violate the Establishment Clause. They elaborate on their claim here and here. Many of the arguments are derived from this paper by Professor Fred Gedicks and Rebecca Van Tassell. The core of the argument is that granting an exemption from the mandate would privilege or favor religion inasmuch as it would shift the burden of purchasing contraception to third parties–i.e., the employees of the exempted corporations. The key to understanding the argument is their reliance on a Burger Court case, Estate of Thornton v. Caldor, which involved an exemption for employees from working on their Sabbath day. A Presbyterian who wished not to work on Sunday sued Caldor after the company dismissed him from a management position because he would not work Sunday. Because the law took absolutely no account of the secular interests of third parties (the employers), the law was found to violate the Establishment Clause. The “unyielding weighting in favor of Sabbath observers” resulted in a major burden on employers. T&S rely especially on this quote of Judge Learned Hand cited in Thornton: “The First Amendment … gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.” T&S (as well as Gedicks and Van Tassell) note that the principle of Thornton was restated in dicta in a more recent case, Cutter v. Wilkinson, which involved the application of RLUIPA. Justice Ginsburg, in dicta, said that in applying RLUIPA, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”

I think the argument is interesting, but mistaken. In truth, I have never understood Thornton very well at all and find it to be a difficult case. So I’ll start with a few basic points about exemptions and RFRA.

First, any exemption in this context will be directed toward benefiting some religious practice, and by being so directed, it will necessarily not benefit all others–i.e., “third parties.” If all choices to protect a specific form of religious exercise violate the Establishment Clause, then all exemptions for religion are Establishment Clause violations. The only thing that would be left for legislators is a law like RFRA, which accommodates religious exercise generally. Could it really be the case that the only thing the Establishment Clause permits is all or nothing? I don’t think so, and the Court has never said so. Professor Schwartzman, in other contexts, has questioned whether religion is a special category at all. If that argument were accepted and given constitutional force, then even laws like RFRA would be unconstitutional, because if the choice to protect religious exercise over non-religious ethical belief advances religion, then both specific and general accommodations are unconstitutional. The Court has not adopted that view. As Corporation of the Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos (1987) put it, “This Court has long recognized that the government may (and sometimes must) accommodate religious practices, and that it may do so without violating the Establishment Clause.”

Second, all exemptions burden third parties in one way or another. An exemption from laws proscribing peyote smoking imposes social costs of various kinds on third parties. An exemption from compulsory school attendance laws does so as well. An exemption for prisoners from wearing prison uniforms will burden prison officials and guards, and ultimately, everyone who is invested in a uniform system of penal justice. Indeed, one could go much further: all rights have costs that fall on third parties (you pick the context–the speech clause, Miranda rights, etc.). Thornton does not say that any time there is any shifting of burdens, the Establishment Clause is violated. Chief Justice Burger’s opinion was much, much narrower than that. It left open the possibility that a more carefully crafted Sabbath exemption law would be constitutional. That is more or less the upshot of Sherbert v. Verner (which was treated as good law by Thornton), where the Court held that a Seventh-day Adventist could not be denied unemployment compensation benefits because she refused to work on the Sabbath. In affirming that case, the Thornton Court is also affirming that it is perfectly constitutional for a state to exempt employees from Sabbath work on religious grounds, thereby imposing the costs of that exemption on third parties. All that Thornton is saying is that a law which imposes extremely severe burdens on secular interests through an “unyielding weighting of” religious interests over those other interests, and which takes no account of the secular interests at all, is constitutionally problematic. Consider an example. Under the Connecticut law at issue in Thornton, a school that is open only 5 days a week would have to provide Sabbath day exemptions to any teacher that asked for it. The burden on the school might be so severe as to impede its ability to function–compelling it even to close. The Thornton Court said that it had to “take pains not to compel people to act in the name of any religion.” (emphasis mine). It’s that kind of extreme burden on secular interests that rendered this law unconstitutional. Another obvious example might be an accommodation that interfered with a third party’s religious freedom–compelling the third party to engage in religious activities. Yet while the Court has said that “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion,’” Amos, only an extreme and absolute imposition on third party interests would justify that conclusion.

Third, both Thornton and a case like Texas Monthly v. Bullock seem to suggest that the burden imposed on secular interests must be state-imposed. Here the question is somewhat complicated inasmuch as the “burden” on employees is said to result from the combination of private claims and state power. Nevertheless, what these cases concerned is the alleviation of burdens on religious or secular beliefs imposed by the state.

Fourth, T&S wonder why nobody has made much of the Establishment Clause claim. But I think there is a good reason. RFRA incorporates certain limits to accommodation. That is, it would be a very rare RFRA (or RLUIPA) accommodation indeed which was constitutionally problematic under Thornton, because all RFRA (and RLUIPA) accommodations need to satisfy the substantial burden, compelling interest, least-restrictive-means threshold. The law at issue in Thornton, according to the Court required an accommodation “no matter what burden or inconvenience this imposes” on third parties. But the standard for RFRA accommodations is not, “you must grant the accommodation no matter what burden or inconvenience this imposes.” Accommodations must pass the government compelling interest threshold. If they do, they seem very much not to be violations of the Establishment Clause rule laid out in Thornton. In fact, many of the arguments about third party harms that T&S make have already been briefed by mandate advocates as part of the RFRA calculus. So they haven’t been ignored. They just haven’t been analyzed under the Thornton Establishment Clause framework, because Congress already saw to that in the statutes.

But let’s consider the Establishment Clause precedents on their own.

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Ron Colombo on Yesterday’s Cert Grants

At Constitution Daily, Hofstra’s Ron Colombo, a past guest here at CLR Forum, has a helpful essay on the contraception mandate cases on which the Court granted cert yesterday. Ron argues that for-profit corporations like Hobby Lobby, the respondent in one of the cases, have standing to raise a free exercise claim:

Hobby Lobby … is owned and operated by a family deeply devoted to its Christian faith.  The company’s statement of purpose commits it to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”  Unlike so many companies today that put profits over people, Hobby Lobby pledges to “[s]erving [its] employees and their families by establishing a work environment and company policies that build character, strengthen individuals, and nurture families.” . . .

So the question becomes:  does the First Amendment provide the protections necessary for businesses such as Hobby Lobby to exist?  Or, to frame things differently:  are individuals free under the U.S. Constitution to follow the dictates of their consciences into the private sector, and to start businesses with practices that are religiously informed?  Businesses around which workers, customers, and investors with shared religious values and beliefs can coalesce?

As should become readily apparent, the recognition of “corporate free exercise rights” ultimately redounds to the protection of individuals.  For it is through religiously expressive corporations that many people wish to live out their faiths.  Can it really be the case that the Constitution effectively consigns these individuals to careers and options only in the world of non-profits?  Is the most significant modern means of harnessing private initiative, the business corporation, somehow carved out from the First Amendment’s religious liberty protections?

You can read Ron’s essay here.

Supreme Court Agrees to Hear For-Profit Contraception Mandate Cases

The Supreme Court has granted certiorari on two cases involving for-profit corporations which brought claims pursuant to the Constitution and the Religious Freedom Restoration Act against the federal government’s contraception mandate (which is part of the Patient Protection Affordable Care Act). The two cases that the Court agreed to hear were the Hobby Lobby case out of the Tenth Circuit and the Conestoga Wood case out of the Third Circuit.

Note that these cases solely involve the issue of for-profit corporations. They do not concern the question of the “accommodation” granted to certain religious non-profit corporations which the government has decided are not exempt from the mandate. As this breakdown indicates, the Tenth Circuit found en banc that the corporation had free exercise rights which had been violated (it did not decide the issue of the rights of the individual owners), while the Third Circuit panel rejected all claims. One last note of interest (for now): neither of these corporations is owned by Catholics. Hobby Lobby’s ownership is Evangelical, while Conestoga Wood Specialties’ ownership is Mennonite.