From: National Catholic Register

COMMENTARY

by GERALD J. RUSSELLO 06/30/2014

In a widely awaited decision Monday, the U.S. Supreme Court, in an opinion by Justice Samuel Alito, joined by four other justices, held that the Religious Freedom Restoration Act (RFRA) prohibits the federal government from forcing employers to provide health-care coverage such as providing contraceptives when doing so would conflict with their religious beliefs.

The case, Burwell v. Hobby Lobby Stores, Inc., is a ringing vindication of a number of lower courts that have held that privately held corporations such as Hobby Lobby and Conestoga Wood Specialties Corp. do have, and can “freely exercise,” the religious faith of their owners.

The case makes several things clear. Under RFRA, it is not enough that a law or regulation serve what is called a “compelling government interest” when imposing a “substantial burden” on someone’s free exercise of religion. The majority here assumes that the contraceptive mandate does further such an interest (a point which itself has been challenged).

But even if that is the case, as Alito wrote, “In order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways Congress or HHS could equally insure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, all FDA-approved contraceptives.”

In one sense, this decision should not have been a surprise. The fatal flaw in the government’s argument throughout the cases in the lower courts has been the fact that imposing this burden upon employers contrary to their religious beliefs was never the least restrictive means to effectuate governmental interests. The Department of Heath and Human Services itself had made accommodation for nonprofit religious institutions.

The majority addressed this point head-on:

The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS 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. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

The government provided no reason to the court because there is no reason other than because the government wanted to do what was constitutionally impermissible: force entities to act contrary to their religious beliefs.

To get around this awkward fact, the government began to put forth the argument that RFRA and its protections did not apply to for-profit entities such as Hobby Lobby or Conestoga. There was no statutory or textual basis for this argument, and the court shot it down in the opening pages of its decision, stating, “We reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships.”

“The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs,” wrote Alito.

The opinion referenced the commonsense notion that corporations often act for charitable or humanitarian purposes, despite being entities seeking profit. A corporation may similarly act on religious beliefs.

The court left room for further elaboration on this point; for example, it may be more difficult for a large, publicly held corporation to claim it has specific, articulable religious beliefs, but the overarching principle that entities as well as persons can exercise religious liberty was secured.

Perhaps most unfortunately, the court also gives apparent credence to the “accommodation” that the government proffered to nonprofits, like the Eternal Word Global Network. The accommodation required nonprofits to arguably surrender their religious objections in exchange for signing a form, the act of which some groups continue to protest, in other lawsuits, as a violation of their freedom. The court suggests that such an accommodation might be workable, a question that will undoubtedly continue to be fought in the lower courts.

Nevertheless, the decision, then, is a welcome addition to the court’s jurisprudence and a reminder that the government cannot simply assert its will over believers, even where the interest is compelling. One would have liked the court, perhaps, to address more forthrightly how “compelling” an interest it was in light of the fact that millions of employees have been grandfathered into an exception from the mandate, in addition to the religious employers explicitly carved out.

Moreover, it was left unaddressed whether the kinds of contraceptive coverage at issue could properly be described as “health care,” and so an appropriately compelling government interest. There is some evidence to believe that religious for-profit institutions were not provided exclusions, even after the cases started, simply due to animus against believers. In other words, the mandate was an element in a larger cultural war and not a principled position.

Although the court noted that “it is arguable that there are features of ACA that support” the view that the government’s interest was not, in fact, constitutionally compelling, in an exercise of prudence, the court found it need not address the issue.

That is a minor point in a decision that is a great victory for the plaintiffs, their lawyers at the Becket Fund and religious liberty.

Gerald J. Russello is a lawyer and editor of The University Bookman.