As Americans wait to see how the Supreme Court will handle two challenges to contraceptive and abortifacient provisions of the Affordable Care Act, religion has become an issue in this dispute in sometimes surprising ways.
From the start it has been obvious that the case being weighed by the court raises serious religious liberty issues. What wasn’t obvious until now was that in some minds there’s another religious issue as well: the faith commitment, or absence thereof, of individual members of the Supreme Court — especially the Catholics.
That was the implication of a front-page story in the Washington Post on March 24, the day before the court heard oral arguments in the consolidated case. The story, written by Post Supreme Court reporter Robert Barnes, focused on whether and how the justices’ religious views might affect the outcome, with particular attention given to five of the court’s six Catholic members.
The Post wasn’t alone in stressing religious aspects of the case over and above its First Amendment free-exercise dimension. The Los Angeles Times commented that “because the objections to the contraceptive mandate come from Catholic bishops and evangelical Christians, not small or obscure sects, the potential effect has been magnified.”
But the Post went further. In “what is likely to be the signature case of the term,” Barnes wrote, “the issue is not affiliation but devotion” — in other words, the presence or absence of religious fervor among the justices. Whatever Barnes and the Post had in mind, the message appeared to some to be: Keep your eye on those Catholics.
It’s reasonable to suppose many people will.
Facts of the cases
The court devoted 90 minutes on March 25 to hearing the two consolidated challenges (Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius). Sebelius is U.S. Secretary of Health and Human Services Secretary Kathleen Sebelius, the Obama administration official with overall responsibility for overseeing the implementation of the Affordable Care Act, popularly known as Obamacare.
The decision is expected shortly before the court’s present term ends late June. In general, the oral arguments suggested the unsurprising possibility of a 5-4 result, with the four liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — pitted against the four conservatives — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. In that scenario, the tie-breaking vote would be cast, as so often, by Justice Anthony Kennedy.
The Hobby Lobby case involves a 600-store crafts chain with more than 13,000 employees owned by evangelical Christians. Conestoga Wood Specialties is a cabinet-making company owned by a Mennonite family and employing 950 people. The owners in both cases object to the Affordable Care Act’s requirement that businesses provide employee health coverage that includes abortifacients.
Hobby Lobby prevailed in the lower courts. But the appeals court in the Conestoga Wood Specialties case ruled in favor of the government. The Supreme Court’s decision will be crucial not only for companies like these in their relations with Obamacare but for larger legal and constitutional questions.
These are whether the First Amendment’s religious free-exercise protection extends to profit-making corporations and whether the Affordable Care Act’s contraceptive and abortifacient requirements reflect a “compelling government interest” entitling it, in the terms of a 1993 law, to impose a “substantial burden” on the free-exercise rights of persons with conscientious objections.
The 1993 law, the Religious Freedom Restoration Act, was adopted by Congress to rectify an earlier Supreme Court ruling seen as lowering the barrier to government infringement on free exercise too far.
Not directly at issue in the present dispute is the contraception-abortion mandate as it applies to church-related groups and institutions. But cases representing their interests are headed for court, and the result in the Hobby Lobby and Conestoga Wood Specialties case will have a strong, though not necessarily decisive, effect on them.
Two weeks before the oral arguments, a coalition called the Catholic Benefits Association, representing nearly 200 Catholic employers and 19,000 employees nationwide, filed suit in U.S. District Court for the Western District of Oklahoma against these provisions of Obamacare.
Against this background, the interest in the religious commitments of the justices expressed in the Washington Post article was unusual though perhaps not surprising. Barnes passed lightly over the religious view of the court’s three Jewish members — Ginsburg, Breyer, and Kagan — suggesting that none of them was very religious.
Of the court’s six Catholics, the article — for unexplained reasons — ignored Kennedy entirely, even though his vote may ultimately decide the outcome. Regarding Sotomayor, Barnes wrote that she is “not religious, by most accounts” but does have “an extensive religious background” and credits her parochial schooling with her rise “from poverty to an elite education.”
That left four other Catholics — Roberts, Scalia, Thomas and Alito — whom Barnes characterized as religiously conservative. The Post writer expressed wonderment especially at Scalia’s having confessed to belief in the devil in a magazine interview last year.
“The rise of religious conservatives on the court corresponds with the rise of the religious right in Republican politics,” Barnes wrote. He conceded, however, that, according to “experts,” Roberts, Scalia, Thomas and Alito “were not chosen for their religious affiliations.”
So why bring those affiliations up now? The Post writer didn’t say, but he made it clear that in his mind — and presumably the Post editors’ minds — it matters.
“The justices got religion,” Barnes wrote. “Or at least they seem more open about their faith ... talking more about how religion shaped their lives or guides them now.” And that, he intimated, could make a difference now, as the court “weighs religious conviction vs. legal obligation.”
The heightened interest in this dispute was visible in a larger than ordinary outpouring of media commentaries before and after the Supreme Court heard oral arguments. Among these was a March 22 op-ed column in the Post by prominent evangelical pastor Rick Warren, author of the best-selling book “The Purpose Driven Life” (Zondervan, $14.99). If the government wins this case, he declared, “the first purpose on which the United States was founded (religious liberty) would be severely damaged.”
Warren concluded with a quote from a letter by Thomas Jefferson that he once owned but said he’d given to Hobby Lobby owners David and Barbara Green: “No provision in our constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”
In less than three months, America will find out whether the Supreme Court agrees.
Russell Shaw is an OSV contributing editor.