Monday morning the Supreme Court of the United States will hand down its decision in the Hobby Lobby case. This case is one of the most important this year because of the issues it presents. Can corporations be considered people for legal purposes? Can businesses have religious beliefs? If they can, are they allowed to refuse to cover contraception under required health plans based on their religious beliefs? And finally, if corporations can be seen as people under the law, what other laws can they avoid following based on this fact?
In the Hobby Lobby case, the owners of Hobby Lobby and Conestoga Wood Specialties are asserting religious rights on behalf of their businesses. Hobby Lobby is owned by Southern Baptists, and Conestoga Wood Specialties is owned by Mennonites. Both sets of owners refused to cover contraception for employees as mandated by the Affordable Care Act on the theory that doing so violates the religious liberty of their businesses.
The legal theory for this position is that the Religious Freedom Restoration Act (RFRA) protects the rights of businesses as well as individuals. Thus far in its history the RFRA has only applied to people, but in recent years GOP conservatives in particular have been leaning towards granting “corporate personhood” rights to businesses.
If the court finds that Hobby Lobby and Conestoga Wood are “people” with religious beliefs for the purposes of the RFRA, it will then have to reach the issue of whether the ACA is imposing a “substantial burden” on them by making them cover birth control for employees. If the court finds that the birth control mandate is a substantial burden on their religious freedom, it then has to decide if the government has a “compelling interest” to enforce that provision of the ACA anyway. Essentially the rights of women to health care will be juxtaposed against the religious rights of the individuals—although in this case the individuals would actually be businesses.
One possible outcome will see the court finding that the ACA’s contraception mandate is a tax. In other words, businesses have a choice: they can pay for insurance or pay a penalty tax to the government instead. The cost of the penalty is significantly lower than the cost of the insurance.
If the court finds in favor of Hobby Lobby and Conestoga, there may be serious legal consequences. Any corporations might refuse contraception costs citing religious objections. This kind of refusal might also be extended to other services like vaccines. It is even possible that businesses might cite religious beliefs as the basis for a refusal to pay equal wages for different workers; for example, they might refuse to pay women and men equally for religious reasons. Finally, it isn’t immediately clear whether a win for Hobby Lobby and Conestoga will apply to any businesses or only to family-owned businesses.
On the other hand, the court could clearly find that businesses are not people and do not enjoy religious rights.
If the court doesn’t choose to go this far, it might simply say that the coverage of contraception does not substantially burden religion and that it wouldn’t substantially burden Hobby Lobby and Conestoga Wood. In other words, since it is so easy to avoid the contraception mandate there is no substantial burden on religious freedom.
Even if the court does find that the mandate places a substantial burden on religious liberty that businesses enjoy, it might find that women’s right to health and equal treatment outweigh those concerns. That would mean the government indeed has a compelling interest in maintaining the contraception mandate and enforcing it against the businesses.
If the Supreme Court does find in favor of Hobby Lobby and Conestoga Wood, it is likely that we will see legislation addressing the issue of corporations as people. The RFRA is a statute, not a right guaranteed by the Constitution. This means that it is not a fundamental right and can be addressed by lawmakers more easily.