The United States Supreme Court yesterday decided
Burwell v. Hobby Lobby Stores [pdf] , holding that a closely held corporation is a "person" that
can hold a religious "belief" for purposes of the
Religious Freedom Restoration Act (which prohibits the federal government from taking any action that substantially
burdens the exercise of religion unless it is the least restrictive means
possible). Thus, the plaintiff was able to rely on its religious beliefs
to opt out of the requirement of the Affordable Care Act (aka Obamacare)
to provide healthcare coverage for contraceptives.
The issue raised by Hobby Lobby in its suit was whether closely held, for-profit
companies (those that have 5 or fewer individuals who own more than 50%
of the business's outstanding stock) could be required to comply with
the ACA's contraception mandate over the religious objections of their owners.
Justice Alito, who wrote the decision for the majority, found that this
portion of the ACA's Employer Mandate violated the Religious Freedom
Restoration Act (RFRA), which prohibits the "Federal Government from
taking any action that substantially burdens the exercise of religion
unless that action constitutes the least restrictive means of serving
a compelling government interest." In the decision, the Court found
that the contraception mandate was indeed a substantial burden on the
free exercise of religion. Although the Court presumed that the ACA regulations
at issue served a compelling government purpose, it held that the government
could find less restrictive means of achieving that interest.
Justice Ginsburg, in her dissent, states that the majority's opinion
is not limited to the ACA's contraceptive mandate, but instead will
enable any company to opt out of any non-tax law on the basis of a religious
belief: "In a decision of startling breadth, the Court holds that
commercial enterprises, including corporations, along with partnerships
and sole proprietorships, can opt out of any law (saving only tax laws)
they judge incompatible with their sincerely held religious beliefs."
The case's relevance to us in the employment law arena depends on whether
it will affect Title VII and other workplace anti-discrimination laws.
What if a company has a sincerely held religious belief that it is ok
to discriminate against women or Muslims? Will this decision allow companies
to opt out of laws that are not consistent with their beliefs? Justice
Ginsberg cites a 1985 case in which born-again Christians who owned closely
held for-profit health clubs believed that the Bible proscribed hiring
or retaining an "individua[l] living with but not married to a person
of the opposite sex," "a young, single woman working without
her father's consent or a married woman working without her husband's
consent," and any person "antagonistic to the Bible," including
"fornicators and homosexuals". The case was dismissed then,
but would that happen now?
There is no doubt that the Hobby Lobby decision is the most sweeping religious
exemption case in modern constitutional history. The case has unsettled
the law by greatly expanding the rights of corporations. But the full
significance of the decision for employment law will depend on how its
scope is extended or limited in future cases.