The media’s reporting on Hobby Lobby made it seem like the Supreme Court decision was nothing more than a conflict between religious liberty and women’s rights. The reality is more complicated, though not so complicated that we can excuse the hysterical reactions.
The case involved a regulation created by Health and Human Services under new powers given by the Affordable Care Act. This bureaucratic decree, known as the contraceptive mandate, requires that employee health plans include all 20 forms of birth control approved by the FDA. Four of these take effect after conception, and certain religious groups see them as the moral equivalent to abortion.
The Christian owners of Hobby Lobby, a chain of craft stores, wanted no part in providing those four contraceptives, though they agreed to cover the other 16 kinds and never indicated that they would discriminate against employees for their reproductive choices. The case ended up in the Supreme Court with Hobby Lobby arguing that the contraceptive mandate put an unreasonable burden on its free exercise of religion.
The argument rested on the Religious Freedom Restoration Act (RFRA), passed in 1993 by a majority Democratic Congress under President Clinton. The RFRA holds that “Government shall not substantially burden a person’s exercise of religion,” unless doing so both “furthers a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”
During the oral argument, Justice Sotomayor posed a question on many people’s minds: Is a corporation really a ‘person’ that can exercise religion? Contrary to what many believe, the doctrine of corporate personhood isn’t an invention of the Court: The very beginning of the U.S. Code reads, “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” By the letter of the law, Hobby Lobby’s religious exercise qualifies for RFRA protection. Whether that’s a strange and unintended accident of lawmaking is a different story. The Court rules on the law as it’s written.
The government then needed to prove that its interest—the provision of subsidized birth control—was compelling, and that its method of achieving it—requiring employers to include it in their health plans—minimized the burden on religious exercise.
The phrase ‘compelling interest’ is so vague that the Court tends to play it safe by assuming that any interest of the government must be compelling. “We find it unnecessary to adjudicate this issue,” the Court opined, allowing it to move on to the RFRA’s final question.
Is there a way for the government to achieve its goal while putting less of a burden on religious exercise? The answer is an emphatic yes. The health care law itself includes an accommodation that allows employees to receive government-subsidized contraceptives if their employers don’t provide them. That part of the law was written with religiously affiliated non-profits in mind, but, as the Court opined, the Department of Health and Human Services “has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.”
The explicit result of the ruling was the exemption of certain corporations from the birth control mandate. To be specific, it applied only to “closely-held” corporations, in which five or fewer people own at least half the company collectively. However, the Court made clear that women could still receive subsidized birth control from the government under the accommodation explained above, and that “The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” This point should be made exceedingly clear: No one is losing access to free birth control. The government is just taking the burden of conscience off the employer.
While the actual facts of the Hobby Lobby decision don’t leave a whole lot of room for outrage, we should never underestimate the force of hip self-righteousness. “Not my boss’s decision,” the protest signs read. The supreme irony, lost on the protestors, is that bosses never wanted anything to do with it in the first place.