- - Tuesday, July 1, 2014

In Monday’s latest installment of the culture wars, the Supreme Court issued its decision in Burwell v. Hobby Lobby. At stake was whether the Religious Freedom Restoration Act prohibited enforcing the Obamacare contraception mandate — the requirement that employers provide employees with health insurance that covers contraception — against for-profit corporations.

The overwhelming anticipation of the court’s decision is far from surprising. By its terms, the case pitted the religious liberty of for-profit corporations against the government’s interest in promoting women’s health. If that clash weren’t enough, the court’s decision was widely predicted to affect the growing number of conflicts between religiously motivated companies — such as bakers and photographers — that sought on religious grounds to refuse wedding-related services to same-sex couples. Such cases had already come up in New Mexico and Colorado and, along with the controversy in Hobby Lobby, posed the following question: When must the law accommodate religion?

The Religious Freedom Restoration Act was passed in 1993 to address such conflicts. To do so, the act set out the following rule: A federal law was not allowed to “substantially burden” the exercise of religion unless the law was the “least restrictive means” to advance a “compelling government interest.” Or, put more plainly, the act prohibits laws from imposing significant burden on religious practice except where the law is necessary to achieve something of vital importance. Hobby Lobby provided the Supreme Court with an opportunity to issue a broadly worded decision that set out the terms for how courts would resolve a wide range of conflicts between the commands of religion and demands of law.

This opportunity notwithstanding, the court did not take the bait. Instead, the justices provided a fact-sensitive ruling that left us with more questions than answers. While the court ruled that only closely held corporations are protected by the Religious Freedom Restoration Act, it did not address whether the same protections would be afforded to “publicly traded companies. The court also equivocated as to whether the interest at stake was in fact sufficiently compelling to justify the contraception mandate. The justices seemed primarily concerned with how many other exemptions had been granted to corporations with fewer than 50 employees, and corporations with grandfathered status under Obamacare, leaving us to wonder what kind of interests will be sufficient in future cases.

Maybe most importantly, the court struck down the contraception mandate largely because of a quirk particular to the facts of Hobby Lobby. Under Obamacare, nonprofit religious organizations are allowed to “self-certify” that they are, in fact, “religious institutions.” In such circumstances, Obamacare instructs the insurance company to pay for the contraceptives without shifting any costs to the employers. The insurance companies are willing to do so because providing contraceptives actually lowers their costs over the long term. With this “self-certify” option available, the court concluded that religiously motivated for-profit companies could be given the same opportunity. As a result, the government could achieve its objectives — protecting women’s health — without either imposing on third parties or burdening the religious conscience of for-profit companies. This rendered the contraception mandate unnecessary and therefore invalid under the Religious Freedom Restoration Act.

However, because Monday’s decision was tied to such fact-specific holdings, it does not provide us much guidance going forward. In how many cases will it be possible to accommodate religious views without imposing costs on others? When there are real costs to others, what interests will be considered sufficiently important to override religious-liberty claims?

If the decision provides little guidance, though, the litigation presents an important lesson. In the months leading up to the Supreme Court’s decision, advocates supporting the contraception mandate expended significant efforts arguing that the plaintiffs in the case — all for-profit corporations — could not, by definition, exercise religion. While the argument had some legal traction — after all, corporations do not pray or practice religion, only people do — there was also a strong element of strategy in pressing this claim. To justify a substantial burden on religion, the Religious Freedom Restoration Act seemed to require the government to satisfy too high a standard — it had to prove that the law was necessary to achieve a compelling interest. The best strategy was to deny that the corporations in question had any rights to begin with.

However, there is a significant cost to this strategy. It requires inflicting significant emotional harm on a wide range of religiously motivated companies — from the kosher butcher to the Christian bookseller — by telling these companies that they were insufficiently religious to merit the government’s protection.

Such a strategy isn’t necessary. Instead of refusing these companies religious liberties, we need courts — from the Supreme Court on down — to articulate a standard for “compelling interests” that doesn’t set the bar beyond reach. We need a standard that captures the inherent need to balance the needs of religion against the needs of others. The answer isn’t to limit the number of religious-liberty claims; the answer is to expand the range of claims while simultaneously recognizing that other considerations might be sufficiently important at times to override religious liberty. Being more explicit about balancing interests ensures that nobody’s claims are deemed irrelevant or insubstantial. Doing so recognizes the sincerely held beliefs and commitments of our increasingly diverse society, and it demands that courts exercise careful and considered judgment — even as sometimes, some interests must win out over others.

Michael Helfand is associate professor of law and associate director of the Diane and Guilford Glazer Institute for Jewish Studies at Pepperdine University.

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