Guest post by Daniel Bennett
Today’s Supreme Court decision in Burwell v. Hobby Lobby is an unequivocal win for advocates of religious freedom, and a serious blow to advocates of women’s health. But the decision’s implications may not be as sweeping as the activists hope or fear.
This much is clear: the Court ruled 5-4 that Hobby Lobby Stores does not have to provide certain forms of contraceptive coverage to its employees under the Affordable Care Act. The Green family, which owns the corporation, believes that paying for coverage of several mandated forms of contraception are contrary to their religious beliefs. The Court held that the Greens are exempt from these regulations under the Religious Freedom Restoration Act (RFRA).
Today’s ruling is a vindication—and in some ways, an expansion—of RFRA. In 1993, Congress passed RFRA in response to the Court’s decision that individuals do not receive religious exemptions from a generally applicable, neutral law. According to Justice Scalia, allowing citizens to not follow a general, neutral law because of religious reasons would mean that each citizen would “become a law unto himself.”
Under RFRA, however, such a law can compel someone to violate his religious beliefs only if the government can show that the law is the “least restrictive means” in advancing the government’s interest. The Court ruled that the government did not demonstrate this in the Hobby Lobby case. Hence, the “contraception mandate” does not apply to the Greens.
What does this mean going forward? In the most narrow terms, businesses like Hobby Lobby Stores, which the Court defines as “closely held” in its decision, are exempt from the regulations governing the contraception mandate. Any business owners with sincere religious objections to certain forms of contraception are not required to provide them to their employees via insurance coverage (provided their business meets certain criteria).
Will these business’ female employees now have to pay for certain forms of contraception out of pocket? Probably not – the Obama administration is expected to, through its regulatory power, provide the coverage. Indeed, in his concurring opinion, Justice Kennedy all but invites government to fill this void, arguing that doing so would be much more reasonable than asking employers with religious objections provide such coverage.
And the Court went out of its way to stress the relative narrowness of its decision today. During oral arguments in March, Justice Kagan wondered whether, should the Greens prevail, future employers may deny covering blood transfusions or vaccinations in insurance coverage on religious grounds. Others worried that employers may use this decision to justify discrimination in hiring on religious grounds.
Today’s majority opinion quickly and explicitly dispatched most of these concerns. But the Court did not address whether religious employers denying homosexuals employment would fall under RFRA protection – that is apparently a question for another day.
Caveats aside, the Court’s decision in Hobby Lobby is a crucial win for religious freedom advocates and a disappointment for women’s health advocates. We will need the dust to settle, though, to see the ruling’s true implications for the ongoing church-state balance in American society.
Daniel Bennett, PhD, researches the conservative legal movement. He will be joining the faculty at Eastern Kentucky University this fall.