When an Amish farmer claimed religious objections to paying Social Security taxes for his employees back in the 1980s, the Supreme Court had little difficulty in ruling against him. “When followers of a particular sect enter into commercial activity as a matter of choice,” Chief Justice Warren E. Burger wrote for a unanimous court in United States v. Lee (1982), “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.”
Three decades later, the same issue is before the Supreme Court, but in a very different political context. The government program at issue in the current cases is not Social Security a long established and popular success but one provision in President Obama’s Affordable Care Act, which is new and unpopular. And the religious belief at issue is not the idiosyncratic Amish opposition to government assistance, but the widely shared opposition among religious conservatives to contraception, especially the so-called Plan B emergency contraceptive, which some view as a drug to induce an abortion.
The legal context has also changed. Under a law passed by Congress in 1993 the Religious Freedom Restoration Act (RFRA) the federal government cannot abridge a person’s free exercise of religion except to serve a compelling government interest in the least restrictive manner possible the so-called “strict scrutiny” test.
Despite the change in law, however, make no mistake: the cases that reached the court last week are politically driven and the outcome as likely as not to be determined by political as much as by legal considerations. Congress had sound reasons to require employers to include free coverage of contraceptives in their employee health plans. Those reasons would satisfy the strict-scrutiny test but for the political opposition to the Affordable Care Act found not only among politicians and the public but also within the federal judiciary, including at the Supreme Court.
The two cases before the court both involve companies formed as closely held corporations by families whose members are opposed to abortion and to emergency contraception on religious grounds. The Mennonite Kahn family in Lancaster County, Pa., own a woodworking company, Conestoga Wood Specialities, with about 950 employees. David Green and his family, evangelical Christians, own (through a trust arrangement) the Oklahoma-based Hobby Lobby Stores, a chain of some 500 arts and crafts marts with 13,000 employees all told.
The corporate status of the two companies raises a preliminary but potentially determinative issue that has divided the federal courts of appeals to rule on these cases so far: Does a secular, for-profit corporation have a constitutionally protected right to free exercise of religion? In the Conestoga case, the Third U.S. Circuit Court of Appeals said no. The free exercise right is “purely personal,” the court ruled in a 2-1 decision. The Sixth Circuit agreed in a decision issued last week [Sept. 17]. In the Hobby Lobby case, however, the Tenth U.S. Circuit Court of Appeals cited precedents recognizing free-exercise rights for churches organized as corporations and found no basis for treating for-profit corporations differently.
The government and the administration’s supporters in the legal blogosphere are investing a lot of capital on this issue. Corporations, they note, do not enjoy all of the protections listed in the Bill of Rights. A corporation, for example, has no Fifth Amendment privilege against self-incrimination. But the five justices who found a broad right of political speech for corporations in the Citizens United case may see no reason not to recognize a corporation’s right to religious expression as well, especially since all five have been sensitive to free exercise claims in other contexts.
So the administration needs to invest equally in defending the contraception mandate on the merits if the court agrees to hear the case (as seems likely) after considering the separate petitions filed by Conestoga and by the government in the Hobby Lobby case. And on the merits the Supreme Court’s reasoning in rejecting the Amish farmer’s case 30 years ago directly applies to the current issue.
The tax system could not function, Burger wrote, if people could challenge it because tax payments were spent in a manner that violated their religious beliefs. Given the importance of maintaining a sound tax system, he concluded, “religious belief in conflict with the payment of taxes affords no basis for resisting the tax.”
In enacting the Affordable Care Act, Congress and the president decided that the government has a strong interest as well in a health care system that, among other things, ensures adequate insurance coverage for preventive services, including contraception. Increased access to contraceptive services is important, the government argues in the Hobby Lobby case, because lack of contraceptive use can have “negative health consequences for both women and children.” The government also has a separate interest in ensuring equal access to health care for women, who pay more than men out of pocket for health care.
Accommodating the Kahns, the Greens, and others like them would deny the employees of their companies the benefits of this government policy. It would also invite other exceptions, the government notes for example, religious-based objections to immunizations. These are strong legal arguments, but they may not be enough for the five Roberts Court justices who have already shown themselves to be deeply skeptical of the Affordable Care Act’s major premises.