Last week, the Supreme Court of the United States (SCOTUS) heard oral arguments in Sebelius v. Hobby Lobby Stores, Inc. Often referred to as simply “Hobby Lobby,” this case is yet another challenge to President Obama’s Affordable Care Act (ACA), otherwise known as “Obamacare.” The central issue in the case is whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.
Under the “contraceptive mandate,” the ACA requires privately-owned businesses to provide employees with no-cost women’s pregnancy services in employee health care plans. The services provided under the plans must include birth control. Hobby Lobby Stores, Inc. has its headquarters in Oklahoma City and is owned by members of the Green family. Hobby Lobby employs more than 13,000 people nationwide. The Green family members involved with Hobby Lobby have a formal agreement in place which directs them to run the company according to a certain set of Christian values. Hobby Lobby stores close on Sundays, play religious music inside some stores, and the company has no qualms about advertising its faith-based values.
Among the Green family’s beliefs is a firm objection to any drugs or devices which would end any human life after conception. Some of these drugs and devices would be made available under the contraceptive mandate. If the Greens were to follow their faith and not provide the contraceptive services to their employees, Hobby Lobby would incur daily fines under the ACA. Estimates put the amount of fines at about $475 million per year. Understandably, the Greens believe that such a burden would place Hobby Lobby in a position to lose ground to its competitors.
Hobby Lobby’s legal argument for avoiding the contraceptive mandate comes largely from the Religious Freedom Restoration Act of 1993. Under RFRA, government agencies may not impose a substantial burden on the religious exercise of a person unless the government can show that the burden is the least restrictive means of furthering a compelling government interest. The word “person” is not defined in the law. Hobby Lobby argues that it is a “person” for purposes of RFRA.
While US courts have treated corporations as “persons” for several purposes over the years, courts have not ruled on the issue of whether a corporation can hold and exercise religious rights. If SCOTUS was to decide that Hobby Lobby is a “person” under RFRA, the government would have to meet the strict scrutiny standard described above for the ACA. If SCOTUS rules that RFRA does not apply to a corporation in this context, Hobby Lobby would likely have to hope to win the case on other grounds.
Last week, at oral arguments, former Solicitor General Paul Clement argued for Hobby Lobby and current Solicitor General Donald Verrilli argued for the government. As expected, Clement faced tough questions from the noted “liberals” on the Court including Justices Kagan, Ginsburg, and Sotomayor. Similarly, Mr. Verrilli was repeatedly challenged by the traditionally “conservative” wing of the Court including Justices Scalia, Alito, and Chief Justice Roberts. Justice Kennedy, often a tie-breaking “swing votes” in cases such as this, asked difficult questions of both sides.
If the case, like many controversial cases in recent years, splits 5-4, it seems likely that Justice Kennedy may be the deciding vote. However, that is not a sure thing as Justice Roberts proved two years ago when he shocked many in the legal community by voting to uphold the majority of the ACA in a landmark ruling. As much as the justices get “pigeon-holed” into certain ideological categories, their brilliant legal minds can sometimes lead them to unexpected decisions.
A decision in the case is likely still some months away, but rest assured when the decision is made, it will make waves in business law, health care law, and constitutional law at the very least. If you are interested in learning more about the case, visit SCOTUSblog for some of the very best Supreme Court coverage to be found anywhere. The attorneys at Dalton & Tomich, PLC have extensive experience in both business law and matters of religious freedom. If you believe that your rights or those of your business have been violated, please do not hesitate to contact us. We would be happy to speak with you about your matter.