Editorial: Supreme Court's Hobby Lobby ruling means tougher cases down the road

by NCR Editorial Staff

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One of the few certainties issuing from the U.S. Supreme Court's decision in the Burwell v. Hobby Lobby case, which extended the birth control accommodation in the Affordable Care Act to closely held for-profit corporations, is a guarantee of more litigation. Perhaps it is only through future cases that the country will ultimately learn whether this ruling is as narrow as Justice Samuel Alito characterized it in his majority opinion or is, rather, "a decision of startling breadth," as Justice Ruth Bader Ginsburg described it in her dissent.

The court, which gave new meaning to corporate personhood in its earlier Citizens United decision, upped the ante significantly in the Hobby Lobby case by granting religious rights -- religious personhood -- to closely held for-profit corporations. Ginsburg seems more firmly anchored in reason when she writes in her dissent, "The exercise of religion is characteristic of natural persons, not artificial legal entities."

That fundamental expansion of the notion of personhood, as well as the inexhaustible implications that potentially are generated by it, have been overtaken in the commentary by gleeful shouts of victory from the religious liberty crowd, and increasing alarm by women concerned that they and their health care can now be targeted by corporations who suddenly get religion.

It might do well here to note that we find ourselves at this point as a society ironically because we have been highly successful in establishing a religiously pluralistic society, accomplished because of a historic generosity in making accommodations for religious practice. Corporate personhood seems to muddy the waters by inviting into both politics and the marketplace the bitter divides of the culture wars.

The U.S. Catholic bishops, the Becket Fund for Religious Liberty, and like-minded religious freedom warriors might cheer victory in this instance, but it is a thin liberty bought on the cheap with a blind eye to the long-term implications written into the fine print of this deal.

Evidence of the degree to which the country was willing in the past to accommodate religion is the Religious Freedom Restoration Act, approved nearly unanimously in 1993 under President Bill Clinton and a Democratic-controlled Congress. That act's assertion that the government "shall not substantially burden the exercise of religion" -- not questions about First Amendment religious freedoms -- is at the heart of the case.

Neither the Hobby Lobby decision nor the recent ruling for Wheaton College place any additional burden on employees. They can obtain contraceptives from the insurance company. They will not even notice any change. The question is how employers, at least those so religiously inclined as to object to some or all contraceptives, will notify insurance companies.

Under the accommodation now offered in the Affordable Care Act, any religious corporation objecting to the contraceptive mandate can defer to its insurance company to provide contraceptives at no cost to the employer by filling out EBSA Form 700 and sending it to the insurance company. The bishops object to even that accommodation.

In granting injunctive relief to Wheaton College, which, like the bishops, did not want to be involved even to the point of filling out a form, the Supreme Court said July 3 that nothing in the order "affects the ability" of the college's "employees and students to obtain, without cost, the full range of FDA approved contraceptives." The college just has to find a new way to communicate its views to the insurance company.

One can only presume at this point that the Catholic bishops will be faced with the same dilemma and will have to find a way to figure out how to communicate their desire in a way that will not cause undue conscience problems. The point to keep in mind in all of this is that the government has never suggested that Catholic institutions pay for procedures that violate church teachings, nor has it ever suggested that people must use contraceptives. It is a thin religious liberty argument, indeed.

The real questions in the future -- having granted corporations religious personhood -- is how the reasoning of this case will come to bear on issues like spousal benefits for gays, stem cell treatments, rental space for gay receptions and the like. In such cases, the cost cannot be dumped on an insurance company. Whatever accommodations are finally arrived at for the Affordable Care Act will only be the equivalent of a legal Band-Aid that may work for the contraceptive mandate. It won't for tougher cases further on down the road.


A version of this story appeared in the July 18-31, 2014 print issue under the headline: Ruling means tougher cases down the road.

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