On Monday, the Supreme Court of the United States [SCOTUS] ruled 5-4 in Burwell v. Hobby Lobby that some for-profit employers with religious objections do not need to provide contraception coverage under the Affordable Care Act (ACA). The Wild Hunt breaks down the ruling and features commentary from Pagans from across the U.S.
Basics of the case
Under regulations written in 2012, after the ACA was passed in 2010, all employers with over 50 employees were mandated to provide female workers with no-cost access to twenty different kinds of FDA approved contraceptives. Male contraceptives, such as vasectomies, are not covered under the ACA. The regulations were immediately challenged by religious groups and non-profits who objected to paying for contraceptives. The Obama administration worked out a compromise where religious groups and non-profit corporations would not be forced to pay for contraceptives. Women would still receive no-cost contraceptives, either paid for by the insurers or the government. It’s estimated that a third of Americans are not eligible for employer-provided, no-cost contraceptives.
In 2012 the families that own Hobby Lobby and Conestoga Wood Specialties filed suit to opt out of providing four of the twenty women’s contraceptives on religious grounds, citing the Clinton era 1993 Religious Freedom Restoration Act (RFRA). These four contraceptives include the morning after pill, Ella, IUD with progestin, and the copper IUD.
RFRA is a federal law that prohibits the government from imposing a substantial burden on a person’s ability to practice his religion unless that burden advances an important government interest and does so in the least restrictive way possible. The question on which SCOTUS was asked to rule was whether the contraceptive mandate burdened Hobby Lobby’s and Conestoga Wood Specialties’ religious rights under RFRA. There are five steps to the legal test to check if any rights are being violated.
The first, and publicly most contentious, hurdle was determining if Hobby Lobby, a for-profit corporation, is a “person” under RFRA. Corporate personhood has a long history in American law. The first mention of corporate personhood was the 1819 case Trustees of Dartmouth College v. Woodward. In this case, corporations were ruled as persons so they can engage in contracts and be party to lawsuits. In the next almost 200 years, corporations have been ruled as persons with rights in matters ranging from protection from illegal search and seizure; to free speech; to the right to own property. Yet corporations do not have all the same protections and rights as individuals.
In the Hobby Lobby ruling, Justice Samuel Alito emphasized that corporate personhood falls in line with historical precedence. It’s not really about faceless corporations; it’s about the individual people who own the corporations. He states, “A corporation is simply a form of organization used by human beings to achieve desired ends….When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
Yet a stronger case exists in the The Dictionary Act of 1871, which set the definitions of words unless a law specifically defines them another way. The Dictionary Act says “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” RFRA did not spell out another definition of the word person so the meaning is defined by the Dictionary Act.
Practice his religion
The next question that needed to be answered was: Can corporations practice a religion? They can’t go to a house of worship, nor can they pray. Yet the government and courts have acknowledged in the past that non-profit and for-profit corporations can exercise religion. In the case of for-profit corporations, they can have a mission other than making a profit and many list charitable causes and actions in their mission statements. For legal experts who dispute the ruling, this is the area on which most of them focus. Although they agree that corporations can be people with rights, they do not feel freedom of religion should have been granted to for-profit corporations.
Hobby Lobby had to demonstrate that complying with the contraceptive mandate would be a ‘substantial burden.’ The company said the mandate could add as much as $475 million in costs and would require the company to go against its religious beliefs. Despite medical evidence, Hobby Lobby contends that the four types of contraceptives cause the abortion of fertilized eggs.
For this legal test it didn’t matter if Hobby Lobby’s beliefs are correct. The court wasn’t to pass judgment on the reasonableness of its beliefs, just to ascertain if the beliefs were sincere. The court believed Hobby Lobby was sincere in its religious beliefs and that there was a substantial burden placed on those beliefs by the contraceptive mandate.
Important Government Interest
SCOTUS only addressed this in passing. The justices assumed that the government has valid and important reasons for requiring employers to provide their female employees with no-cost birth control.
Least Restrictive Way Possible
If the government does have an important interest in mandating employers pay for contraceptives for their female employees, is that enough? Under RFRA the answer is no. The government must choose the method which is the least restrictive on religious rights.
The court noted that the government already has another way of ensuring women receive no-cost birth control – the same method it proposed and uses for non-profit corporations. Under the compromise to the contraceptive mandate, non-profit corporations do not have to pay for contraceptives for their employees; yet women still receive them at no cost. The insurer or the government pays for them. SCOTUS decided that the government could do the same for employees of for-profit corporations.
The court took pains to note that the case was not to be considered a slippery slope and that it was very limited in nature. It only applies to “closely held” corporations where a family owns the company and is actively managing the operation. They also said that the ruling doesn’t give corporations the right to avoid paying for things like vaccines or blood transfusions; nor can they racially discriminate in their hiring practices. Justice Kennedy, who agreed with both the majority’s reasoning and its result, even wrote in his concurring opinion that this decision is “a ticket for one day only.”
But is it? In a dissenting opinion, Justice Ginsberg said that this could open the floodgates to future cases on any procedure to which an employer objected on religious grounds, and all cases would now need to be reviewed under the RFRA “substantial burden” test. Another concern was if GLBT discrimination would be allowed since sexual orientation is not a federally recognized protected class. The dissenting justices disagreed that Hobby Lobby could practice its religion and felt the majority went too far in granting rights to groups that should be reserved for individuals.
Ginsberg’s position of dissent could come back to haunt her. When Chief Justice Roberts wrote the majority opinion which struck down the Defense of Marriage Ac (DOMA)t, he said this ruling shouldn’t be interpreted to mean that state laws banning same-sex marriage are unconstitutional. Justice Scalia wrote a scathing dissent saying the majority opinion did exactly that. Lower courts, when striking down state gay marriage bans, used Scalia’s dissent as justification. Ginsberg’s dissent could be used in exactly the same way.
Now that we’ve looked at the case and heard from the justices, we wanted to give Pagans from around the U.S. a chance to sound off about the SCOTUS decision.
Pagans sound off on ruling
Rev. Philipp J. Kessler [photo supplied by Phil Kessler]
I’m a man, I’m gay, but I am a person. SCOTUS is granted the legal right to make decisions that may have direct effect on me and others in the United States. When others in the United States seek to use those decision to have discriminatory effect on other citizens then they, in this case business, are over stepping their bounds. Fine, Hobby Lobby and certain other privately owned multi-million (multi-billion) dollar companies have won their case with SCOTUS and do not have to follow the Obamacare requirement to provide coverage for certain forms of contraceptives, including abortion. That does not open the doors, on moral and ethical grounds, for other companies to apply for religious exemptions when it comes to hiring and firing of people that they perceive to be gay, people that are of another national origin or race. Etc. Etc. – Rev. Philipp J. Kessler, from an op-ed on Scotus Reproductive Rights
Lauren Snow [photo supplied by Lauren Snow]
I’m not just freaked out here because I’m a woman. I’m also freaked out about this – perhaps more so – because I am not a Christian.
I consider myself a member of earth-based religion. (Or, perhaps more accurately, Universe-based religion)… I am devout in my relationship with divinity. I am passionate about interfaith work, as I see that the more differing faith practices are understood between people, the more we can sense a common thread of unfolding love unifying them together.
Here’s the thing. Conservative government officials keep saying they’re ruling in favor of “religious liberty”, but they’re not. They’re ruling in favor of Christian supremacy. And it scares me deeply. How can you shout “religious liberty” while forgetting about the religious liberty of Muslims, Buddhists, Hindus, Pagans, Humanists, Agnostics, and Atheists? Are we not Americans? Are our faiths less “legitimate”? Have we, along with women, been banished from legitimacy as second-class citizens? Where is this slippery slope headed?
Ruth Ginsburg said, “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.” – Lauren Snow
Victory White [photo supplied by Victory White]
Although I am addressing this as a Pagan, I feel very strongly that the religious reference to this case is masking the more important issues that are secular. I’ll address one of these here; it is important to understand the way health insurance works. For years people, including the news media, have blamed health insurance providers for every rejected medication or treatment option. We have all been led to believe that it was completely the insurance companies who decided which medications they covered and which they did not. This is not entirely true, I learned while working at one of the largest prescription providers in the US, that the formularies which we all go through whenever our doctor prescribes a new medication, are a negotiated compromise between our employers and the insurance provider they choose. How this is affected by the Hobby Lobby decision is to me more a potential problem than any religious connotations. With this decision the SCOTUS has opened the door for employers who object or who don’t feel like paying for any category of drugs for “religious” or other moral objections they want to impose. That to me is the main danger of this decision and the precedence it sets….
…The real problems of affordable health care have been hijacked by politics, religion and sexism; and meanwhile people die every day who might have lived had they been able to afford the appropriate care in a timely fashion. All this media driven miss-direction drives the profits for drug companies, insurance companies higher and we all come out the poorer for it as people and as a society. The main reason I am upset about this decision is that using religion inserts a huge amount of emotion in a subject that has already saturated with too much emotion and not enough logical thought. I ask myself how Socrates would look at this and what questions would he prod us to think about? – Victory White
Anne Hatzakis [photo from Anne's blog]
Religious beliefs about things vary. And as a corporate “person” cannot actively participate in actual religious activities, I have trouble with the idea that the corporation’s “religious beliefs” should be able to trump mine — especially when their religious beliefs are not supported by actual science and only target insurance items that one sex utilizes while allowing things for the other sex.
Hellenic Polytheism, in my opinion, is a faith tradition that actively allows for equality of the sexes in modern society. Although the Gods and Goddesses fulfill different roles, there is no such thing as a “weak” goddess in our faith, and there is no need to “control” what those goddesses do — something that this ruling seems to do for women in our society. This ruling seems to be more about controlling a woman’s ability to manage her own life in accordance with HER religious beliefs than it is about anything else. And THAT is something that I cannot agree with. – Anne Hatzakis
Kayla Loy [photo supplied by Kayla Loy]
As a Pagan and a Libertarian I am tickled pink about the Hobby Lobby ruling. I find the Affordable Care Act to be just another way for government to be involved in my life. It is a terrible law, and anything that is poking holes in it is fine by me. Also, if you are really that tore up about your employer not paying for your birth control, drop the $30 a month out of your own pocket, and buy it yourself. – Kayla Loy
Robert Anthony Parobechek [photo supplied by Robert Parobechek]
This country is run by corporations… simple enough. The main way the government keeps people complacent about it is with organized religion and its flagrant endorsement of it. Bust your ass to keep the corporate elite because it is part of God’s plan… here is the problem. There is no God, intellectuals who know what is really going on (meaning the smart people ) cannot stand this government. So it is OK for one company to deny someone health coverage for this religious belief and that…. what happens if a Muslim company wants to do it because it violates sharia law… like denying a woman the right to see a doctor after she was beaten by her husband? Should the supreme court uphold that too? Religion belongs in private institutions and out of the government period. Frankly the men on the Supreme Court are traitors for not doing their jobs properly in my book! - Robert Anthony Parobechek