Elizabeth Wydra: Court decision on contraception coverage has long implications
She says letting companies claim religious liberty flies in face of 200 years of interpretation
She says their "religious liberties" let them deny employees benefits they're legally entitled to
Wydra: Ruling could open door to religious objections to such things as protections for gays
Editor’s Note: Elizabeth B. Wydra is chief counsel for the Constitutional Accountability Center, a public-interest law firm, think tank and action center. She regularly participates in Supreme Court litigation. Follow her on Twitter @ElizabethWydra. The opinions expressed in this commentary are solely those of the author.
Don’t be fooled. No matter what the conservative majority of the Supreme Court tried to say in its blockbuster decision, the implications of the ruling in Hobby Lobby extend far beyond contraception coverage.
In a sharply divided 5-4 ruling, the conservative majority of the Supreme Court ruled that for-profit corporations can claim a religious exemption to the Affordable Care Act’s provision that company group health plans fully cover the full range of FDA-approved contraception. In the related cases of Burwell v. Hobby Lobby Inc. and Conestoga Wood Specialties Corp. v. Burwell, the court took great pains to paint its ruling as limited, noting that “our holding is very specific.”
But the ruling is far from narrow. Not only did the court’s conservative majority give unprecedented rights to corporations, it did so at the expense of the rights of living, breathing people.
The Hobby Lobby majority’s ruling that for-profit corporations can assert claims of religious liberty under the Religious Freedom Restoration Act is striking.
The act provides that the government “shall not substantially burden a person’s exercise of religion,” and while laws often use the word “person” to refer to both individual human beings and corporate entities, the Dictionary Act – yes, that’s a real thing – requires words to be read in context. In the context of the “exercise of religion,” never in more than 200 years of protections for religious liberty in this country have for-profit corporations been understood to share in rights of religious free exercise.
Throughout our nation’s history, corporations have been treated differently than individuals when it comes to fundamental, personal rights of conscience and human dignity.
The guarantee of free exercise of religion has always been viewed as a purely personal liberty, guaranteeing the right of individuals to worship and exercise religion consistent with the dictates of their conscience. It has never been considered a right possessed by secular, for-profit corporations – until the court’s ruling in Hobby Lobby.
The Hobby Lobby majority tries to play off the novelty of its holding by claiming that “protecting the free-exercise rights of corporations like Hobby Lobby” simply “protects the religious liberty of the humans who own and control those companies.” But the court needn’t imbue corporations with religious liberty rights to protect the rights of the individual business owners. Those people already have religious liberty rights.
No one would dispute that the Green and Hahn families who own Hobby Lobby and Conestoga Wood have their own personal free exercise rights, but those rights are not implicated by the contraception coverage requirement because federal law does not require the individuals who own a company to personally provide health care coverage or to satisfy any other legal obligation of the corporation. The law places requirements only on the corporate entities.
As the court has held in the Fifth Amendment context, when individuals act in their official capacity as corporate agents, they “cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges.”
Instead, “they assume the rights, duties, and privileges of the artificial entity.” And until the Hobby Lobby ruling, the “rights” of artificial corporate entities did not include the right to impose the religious beliefs of corporate owners on legions of employees who may have very different religious beliefs.
Because the fact is that corporations are not, with apologies to Mitt Romney, people.
When the Roberts court unleashed corporate cash for campaign spending in Citizens United, it was not merely allowing one more voice in the democratic square – it gave corporations an unparalleled megaphone. In a similar fashion, conferring free exercise rights on corporations risks upsetting the balance of religious liberty set by the Founders, which protects individuals’ freedom to practice religion while prohibiting the establishment of religion.
This ability to impose religious beliefs – or at least limitations on conduct based on religious beliefs – on tens of thousands of employees nationwide makes the extension of religious liberty rights to corporations, as opposed to individuals, particularly troubling. As Thomas Jefferson famously said with respect to the protection of Americans’ free exercise of religion, “it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
But when your “neighbor” is your corporate employer, its religious claims can take out of your pocket benefits to which you are legally entitled. Your bosses might not be able to get away with breaking your leg under the guise of religious free exercise, but after Hobby Lobby, they might make you pay for it. And a corporation can do so on a much more substantial scale than any individual could in our diverse society, with our rich mosaic of religious faiths.
Writing the principal dissent in Hobby Lobby, Justice Ruth Bader Ginsburg powerfully explains that the “court’s determination that RFRA extends to for-profit corporations is bound to have untoward effects,” noting that the ruling could open the door to religious objections to insurance coverage of blood transfusions, antidepressants and vaccinations.
And while the majority goes out of its way to say that laws preventing racial discrimination in the workplace are backed by a sufficiently strong public interest as to overcome religious objection, it makes no such assurance when it comes to laws protecting gay and lesbian employees against discrimination.
The Hobby Lobby majority may claim otherwise, but its ruling is far from narrow – and its breadth starts with the sweeping and novel recognition that for-profit corporations share in the right to free exercise of religion.