Looked at narrowly, the question the Supreme Court faced in ruling on the Affordable Care Act’s contraceptive mandate was whether government can force owners of family-owned, for-profit corporations to provide employee health insurance covering abortifacient drugs despite their moral objections to doing so.
In a broader perspective, though, this was a clash between religious liberty and the juggernaut known as the modern secularist state. At least for now, religious liberty won. In the limited circumstances of a case like the one before them, a slim majority of Supreme Court justices are unwilling to be part of the juggernaut.
“Protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga and Mardel protects the religious liberty of the humans who own and control those companies,” Justice Samuel Alito declared in his majority opinion.
The June 30 ruling, the final one of the Supreme Court’s 2013-14 term, provides no certain answer regarding what it will say about the contraception mandate as it applies to Church-related institutions.
While it is difficult to imagine the court requiring religious institutions to bear a conscience burden from which it has now excused some commercial corporations, the religious objectors, which include colleges, hospitals and charities, confront the reality that the government already offers them an exemption — even though many object to it as well.
More than 300 entities, including many Catholic ones, are challenging the contraceptive mandate in more than 90 lawsuits around the country. They contend that requesting the exemption is itself part of a process by which their employees will receive the controversial coverage by another route.
While speaking approvingly of the exemption in general terms, Justice Alito in his opinion said the court at this time was not deciding whether it satisfies “all religious claims” for protection against government coercion to cooperate in something the religious groups find morally abhorrent.
The new ruling came in a consolidated case called Burwell v. Hobby Lobby involving two separate legal challenges to the contraceptive-abortifacient mandate. “Burwell” is Health and Human Services Secretary Sylvia Burwell, whose department is responsible for implementing the Affordable Care Act at the national level.
The Hobby Lobby corporation is an Oklahoma-based 500-store crafts chain owned by a family of evangelical Christians named Green and employing more than 13,000 workers. The Greens also have a chain of religious bookstores called Mardel that was part of the case. Joining Hobby Lobby and Mardel was Conestoga Wood Specialties, a Pennsylvania company owned by a Mennonite family named Hahn that employs 950 people and makes parts for custom wood cabinets.
The Greens and the Hahns cited the First Amendment guarantee of religious liberty in resisting health coverage for drugs that can cause early abortion, but they said they had no objection to other provisions of the mandate providing for contraceptives and sterilization.
A federal district court ruled in 2010 that Hobby Lobby was not entitled to an exemption, but the 10th U.S. Circuit Court of Appeals reversed that decision. Conestoga Wood lost in both the district court and the 3rd Circuit Court of Appeals. The Supreme Court agreed to hear the two cases last November and heard oral arguments March 25. The government was represented by U.S. Solicitor General Donald B. Verrilli Jr. and the family-owned corporations by former Solicitor General Paul D. Clement.
Justices weigh in
The cases predictably attracted an unusual amount of interest, including many friend of the court briefs. In a brief submitted in January, the U.S. Conference of Catholic Bishops declared its opposition to “any rule that would require faithful Catholics and other religiously motivated business owners to choose between providing coverage for products and speech that violate their religious beliefs, and exposing their businesses to devastating penalties.”
Owners faced fines up to $100 per day per employee for refusing to provide the required coverage.
A key question for the Supreme Court concerned the interpretation of the Religious Freedom Restoration Act, the 1993 federal legislation enacted with the intention of raising the constitutional bar against infringements on the free exercise of religion after the court had lowered it in an earlier decision.
The justices split along familiar conservative-liberal lines, with the majority adopting the sort of narrow approach that pre-ruling observers like William Saunders of Americans United for Life said Chief Justice John Roberts prefers in the interests of avoiding judicial overreach. Joining Alito were Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. The four dissenters were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, with Ginsburg writing a lengthy dissent.
Alito said the mandate would force the Greens and the Hahns to “engage in conduct that seriously violates their religious beliefs,” and the government had failed to show this was necessary to achieve some compelling interest of its own. Ginsburg called the ruling a “decision of startling breadth” — something Alito denied — and said it would open the door to claims by other corporations for exemptions from other requirements on religious grounds. But for the moment at least the decision stands as a rebuke to the secular state in its juggernaut mode.
In a statement for the U.S. Conference of Catholic Bishops, Archbishop Joseph E. Kurtz of Louisville, president, and Archbishop William E. Lori of Baltimore, chairman of the bishops’ religious liberty committee, welcomed the decision, which came four days before the end of the third annual Fortnight for Freedom, an observance sponsored by the U.S. bishops to focus attention on religious liberty and threats to it.
Noting that the ruling left undecided the pending challenge to the mandate by Church-sponsored groups, the bishops said, “We continue to hope that these great ministries of service, like the Little Sisters of the Poor and so many others, will prevail in their cases as well.”
Russell Shaw is an OSV contributing editor.