NEW YORK (MainStreet) Should a business proprietor be compelled by the government, in this case because of Obamacare, to provide a product or service that is against the proprietor's religious beliefs? This is the case the Supreme Court heard March 25.
Specifically, the Court heard arguments in the case of Sebelius v. Hobby Lobby. This case concerns whether the Religious Freedom Restoration Act of 1993 (RFRA) allows a for-profit corporation to deny its employees the health insurance coverage for contraceptives to which they are entitled as required by the Affordable Care Act - commonly known as Obamacare - because of the owners' religious beliefs. RFRA states that the government "shall not substantially burden a person's exercise of religion" unless there is a compelling governmental interest. It also states that this burden must be the least restrictive means to further the government's interest.
The mixture of government and religion is a volatile one.
There was a time when the government of Pennsylvania forced businesses to close on Sunday - the Christian sabbath. These "blue laws," as they were called, hampered the ability of businesses owned by an Orthodox Jew to compete because he was also required to close on Saturday - his sabbath.
Merchant Abraham Braunfeld sued the state and it resulted in the Supreme Court case of Braunfeld v. Brown. The religious interest was denied in this case. No less a liberal than Earl Warren wrote the majority opinion saying there was nothing inherently religious about the law. The Court said the law did not prohibit Orthodox Judaism, it simply made it more expensive.
But the Court upheld the religious argument a couple of years later in Sherbert v. Verner. This involved a Seventh Day Adventist, in South Carolina, who lost her job for refusing to work on Saturday, her Sabbath. Furthermore, unemployment compensation was denied to her. She sued claiming the denial of unemployment compensation interfered with her ability to exercise her religion.
The Court ruled in favor of religion stating that denying Sherbert's unemployment compensation claim was unconstitutional. It prohibited the free exercise of religion. Obviously, even the courts differ on what does and does not violate religious freedom. So a lot of people are engaged in reading tea leaves in this case because of its implications.
"The government has a lot of trouble with [the Hobby Lobby] case," said Ronald Rotunda, a constitutional scholar and law school professor at Chapman University in Orange County, Calif. "They cannot win the case without warping our free exercise jurisprudence. Congress cannot interfere with the free exercise of religion - regardless whether it is a for-profit or nonprofit entity has the government is claiming."
Rotunda was emphatic about stating the employer cannot be required to pay for contraceptives. He reiterated that there is no special government interest in requiring Hobby Lobby to pay for its employees' abortifacients and contraceptives because Congress does it directly by imposing taxes.
"The point is the government can give condoms to men for free," Rotunda said. "They can drop them from planes, they can hand them out on street corners. What they cannot do is they cannot force one citizen to pay for them and then give them to another citizen."
Unlike Rotunda, Anna-Rose Mathieson thinks it is a close case. She is with the San Francisco law firm of O'Melveny & Myers and helped file an amicus brief on behalf of the Guttmacher Institute and Professor Sara Rosenbaum in favor of the government's position.
"As several Justices stressed during oral argument, this case isn't just about contraception," she said. "If the plaintiffs prevail, other companies could refuse to cover vaccinations, blood transfusions or many other health care options. And even focusing just on contraception, the decision will affect thousands or millions of female workers. This point seemed to resonate with Justice Kennedy, who asked skeptically whether the religious claims of a corporation could 'just trump' the rights of workers."
"Many commentators suggest that Justice Kennedy will be the swing vote here, as often happens," she added. "While Justice Kennedy asked pointed questions of both sides, he appeared to recognize that the interests of female workers could be protected with little cost to their employers. Indeed, studies show the costs of providing contraceptive coverage are balanced by savings from lower pregnancy-related costs and from improvements in women's health."
Rotunda does not buy this argument. He said the contraceptive mandate was analogous to making a Quaker buy ammunition for a soldier.
"The government can tax the Quaker, then use the tax revenue to buy ammunition to give to a soldier," he said. "But the government cannot force the Quaker to buy the ammunition and give it to the soldier."
--Written by Michael P. Tremoglie for MainStreet