Supreme Court Will Take Up Employers’ Refusal To Cover Birth Control

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The U.S. Supreme Court said Tuesday it will review two challenges by private businesses who claim they are exempt from a federal requirement to include birth control coverage in health insurance. The decision to review two of the challenges, including one by crafts chain Hobby Lobby, means the high court will take on the controversial questions of whether a secular, for-profit corporation can assert a religious objection to a law, and even whether that corporation has religious expression rights under the U.S. Constitution. It also tests the Affordable Care Act’s guarantee to provide gender-specific, preventative services at no charge to individuals.

The businesses filing these two challenges are secular, for-profit businesses whose owners or shareholders say their religious views should exempt their businesses from providing the same insurance to their employees that all other employers with more than 50 workers must provide. The Obama administration has issued several clarifications to appease faith-based organizations, but has not changed its position on those secular businesses simply owned by a religious individual.

The litigants in this case make the particularly dangerous argument that corporations should be able to assert religious expression rights, potentially even extending the Citizens United reasoning that corporations are people under the First Amendment. The U.S. Supreme Court established more than 30 years ago that a company may not “impose the employer’s religious faith on the employees.” As the Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” This precedent suggests forcing employees to adopt the religious objection of a business owner would violate the free expression rights of the employees.

In one of the federal appeals court decisions the U.S. Supreme Court will now review, Nixon-appointed Judge Leonard Garth explained, “[F]or-profit corporate entities, unlike religious non-profit organizations, do not—and cannot—legally claim a right to exercise or establish a ‘corporate’ religion under the First Amendment or the RFRA. As the District Court noted, ‘[g]eneral business corporations … do not pray, worship, observe sacraments or take other religiously motivated actions separate and apart from the intention and direction of their individual actors.'”

But in the second case, another federal appeals court came to the opposite conclusion, and several other courts have split on this question.

Last year, the high court declined to grant an emergency injunction to craft chain Hobby Lobby. That does not, however, mean it will not rule in favor of private firms this time around. If they are successful in asserting that corporations have religious rights, it could portend future challenges to a host of other federal policies, including anti-discrimination laws.