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Businesses Might Be People, Too? Religion and the ACA at the Court

Hello, readers, and welcome to December! Just when you thought the Supreme Court was slowing down in preparation for the holiday season, The Nine have once again shaken things up. Last Tuesday, November 26, the Court decided to hear four new cases, two of which address whether businesses have religious rights. Yes, you read that correctly—whether businesses as entities have religious rights. If this premise sounds a little too much like Citizens United v. Federal Election Commission for your taste, I’m right there with you. Let’s look more closely into these two cases to figure out what’s at stake.

The first case, Sebelius v. Hobby Lobby Stores, Inc., asks whether the Religious Freedom Restoration Act of 1993 (henceforth RFRA) “allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners” (from SCOTUSblog). In other words, Hobby Lobby, “a corporation owned by a family whose members have said they try to run the business [based] on Christian principles,” wishes to be exempted from providing its employees with “comprehensive insurance coverage for contraception” because it believes its religious principles are being infringed upon by the Affordable Care Act which requires them to provide such contraception coverage (from the New York Times).

How, exactly, are Hobby Lobby’s religious principles being infringed upon? Well, as the New York Times reports, the company “told the justices that it had no problem with offering coverage for many forms of contraception, including condoms, diaphragms, sponges, several kinds of birth control pills and sterilization surgery. But drugs and devices that can prevent embryos from implanting in the womb are another matter, and make it complicit in a form of abortion.” Ahh, that explains it— the possibility of “abortion via birth control” has offended Hobby Lobby’s religious beliefs. Certain religions, including several sects of Christianity, do indeed believe that there is a spiritual and moral objection to abortion, so I can see why the company, based on its religious affiliations, might not want to provide insurance for procedures and drugs related to abortion. I don’t necessarily agree with their position, but if certain types of birth control methods mandated for coverage by the Affordable Care Act can be considered “abortion,” I can somewhat see where Hobby Lobby is coming from.

But wait a minute, New York Times columnist Linda Greenhouse explains in her op-ed about Sebelius v. Hobby Lobby, Inc. that Hobby Lobby’s belief that certain types of birth control “act after fertilization to prevent a fertilized egg from implanting and continuing to develop” is “incorrect, as a brief filed by a coalition of leading medical authorities demonstrates; although there was once some confusion on this point, the disputed hormonal methods are now understood to prevent fertilization from occurring in the first place.” So Hobby Lobby’s entire complaint is based upon the (somewhat large) misconception that certain types of birth control are comparable to abortion? I hope the Supreme Court takes that fact into account when hearing and deciding this case. Hold on, how was Hobby Lobby even able to bring the case in the first place? This doesn’t seem like a First Amendment issue to me, as the Establishment Clause isn’t quite applicable in this situation.

Instead, this is a RFRA issue—as explained above, Hobby Lobby challenged its compliance with the Affordable Care Act because of a RFRA provision “which provides that the government ‘shall not substantially burden a person’s exercise of religion’ unless that burden is the least restrictive means to further a compelling governmental interest” (from SCOTUSblog). You may be thinking to yourself, “Well, that’s alright, but Hobby Lobby is a for-profit business, not a person,” and you’d be thinking correctly. Hobby Lobby is indeed a for-profit enterprise “which operates a chain of arts-and-crafts stores and has more than 15,000 full-time employees of many faiths” (from the New York Times). However, in June, the United States Court of Appeals for the Tenth Circuit ruled that Hobby Lobby was, in fact, “a ‘person’ under the RFRA, and that its religious beliefs had been compromised without good reason” when the company was mandated under the Affordable Care Act to provide comprehensive insurance coverage for contraception (from the New York Times).

So, following in the extremely controversial footsteps left by the Supreme Court in Citizens United, the Tenth Circuit figured that, if corporations could be considered people to whom the Constitution and all United States laws apply, so could for-profit businesses. And, because of that classification by the Tenth Circuit, it now falls to the Supreme Court to decide “whether the pregnancy-related care coverage can be enforced against profit-making companies—or their individual owners, when that is a very small group—when the coverage contradicts privately held religious beliefs” (from SCOTUSblog).

Following in this same vein of “businesses are definitely people, too” is the second RFRA case that the Court decided to hear: Conestoga Wood Specialties Corp. v. Sebelius, which also asks “whether the religious owners of a family business, or their closely held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage mandate of the Affordable Care Act.” In Conestoga Wood Specialties Corp., both the owners of the business and the business itself claim that their religious rights have been infringed upon under the RFRA and also the First Amendment; this case takes the religious challenge to the Affordable Care Act’s contraceptive mandate one step further than Hobby Lobby does.

As the intrepid Lyle Denniston explains, “It is already clear, of course, that individuals—whether they own businesses or not—do have religious beliefs that the government may not try to regulate. But it is not yet clear, and these cases will test the issue, whether they have a right—constitutional or based on a 1993 federal law—to rely upon those beliefs in refusing to provide a kind of health care coverage that they say violates the tenets of their faith.” He also addresses the “businesses as people” issue seen in both Connestoga Wood Specialities Corp. and Hobby Lobby, Inc., saying, “On the other hand, it is not clear that a business that is formed as a corporation, and engages in a strictly commercial kind of activity, can have religious beliefs and can actually base its commercial actions upon such faith principles (separate from the religious beliefs of its owners). The Court has never ruled on that issue, but that is one of the core issues it has now agreed to consider.”

And that  “core issue” at stake in Conestoga Wood Specialties Corp. and Hobby Lobby, Inc.—whether a business can actually have religious beliefs—is what makes me so nervous: the Court is, in a way, “flying blind” here. There is no precedent to inform these two cases except for Citizens United, perhaps, and the circumstances surrounding that case were vastly different. The Court ruled, in that case, that corporations were people with First Amendment rights such as free speech. Of these two new cases, the First Amendment is only questioned in one, and the greater issue at hand is the RFRA as applied to the Affordable Care Act. Does the contraception mandate of the Affordable Care Act actually “substantially burden a person’s exercise of religion,” as both the individual owners of Conestoga Wood Specialties and the entire business of Hobby Lobby contend? I could, in some vague sense, understand how the private owners of Conestoga Wood Specialties might be burdened in their practice of religion by having to provide birth control to their employees; if they believe (however misguidedly) that certain types of birth control are comparable to abortion; they might find their beliefs violated when providing coverage for that “abortion birth control” (which we know is not actually extant) to their employees.

I find it very difficult, however, to see how the RFRA applies to either Conestoga Wood Specialties or Hobby Lobby as business entities. Despite the Tenth Circuit’s classification of Hobby Lobby as a person, I think it’s clear that a business is not a person. A business has no brain, no family, no capability of voting in local, state, or national elections, no lungs, no “going to Church every Sunday,” even if the business identifies as one run by Christian principles. The owners and employees of a certain business are, indeed, people, but I cannot understand how the Tenth Circuit views incorporeal, for-profit enterprises in the same light as living, breathing citizens. (For the record, I also cannot understand how the Supreme Court considered corporations to be people in its Citizens United decision. I’m baffled by this decision roughly twice a week.)

If the Court rules that the businesses discussed above are, in fact, people, and that the religious exercise of those people-businesses is indeed being burdened, both businesses will be able to impose their religious beliefs and practices upon their employees notwithstanding the existence of federal laws that mandate specific requirements. How can the imposition of one set of religious beliefs (the exclusion of certain types of birth control from one’s life) onto a whole group of employees possibly be constitutional? If the United States Congress, as restricted by the First Amendment, “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” how can it be constitutional for a business to be allowed to implement its own religious practices on its employees solely because they are employees? It seems to me that what’s at stake in both Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. is greater than the personhood of a business—it’s even greater than the Affordable Care Act’s contraception mandate. What’s at stake in these two cases is the way in which this country views religion: how and when it gets priority over certain rights and laws, which religious beliefs can and cannot be imposed upon everyone (or certain classes of persons, i.e., employees), the extent to which an individual’s practice can influence his or her daily life, etc. Between these cases and Town of Greece v. Galloway, the Supreme Court in its 2013-2014 term appears ready to make bold statements about what our country’s belief in “freedom of religion” means and to whom it applies. And I’m nervous, because I’m not exactly sure what those bold statements will entail.

About the Author

Lena Barsky hails from Arlington, VA and is a Classics concentrator who graduated in 2014. When not translating the works of Vergil and Ovid, she spends her time keeping tabs on all things judiciary. Her primary areas of interest are the Fourteenth Amendment, questions of federalism, immigration, and combating domestic violence and sexual assault. Ruth Bader Ginsburg is an idol of hers, and her favorite opinions to read are those written by Justice Robert Jackson. Her hobbies include performing in various ensembles on the clarinet, reading anything and everything she can get her hands on, swing dancing, and fighting for women’s rights.