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Next week, the Supreme Court will hear oral arguments in the Holly Lobby and Conestoga Wood cases involving Obamacare, the so-called contraceptive mandate, a federal law, and the Free Exercise Clause of the First Amendment. Paul Clement will present the case for the employers in this case. Some are portraying this as a test case against Obamacare and a means to whittle away at it. However, this is not as cut-and-dry as Clement would have one believe from the submitted brief. If it was as “obvious” as he states, then this would not be before the Supreme Court.
In reality, this is a case of statutory interpretation with a relationship to the Free Exercise Clause. The specific law in question is the Religious Freedom Restoration Act of 1993 (RFRA) which was passed by an almost unanimous Congress with strong bipartisan support and signed into law by President Clinton. The basic thrust of the law was to codify over 200 years of jurisprudence involving the Free Exercise clause. The key parameter was that a law or regulation cannot “substantially burden a person’s exercise of religion.” The law itself was a reaction to a 1990 Supreme Court decision- Employment Division vs. Smith– authored by Justice Scalia. That decision stated two things. First, it said that the First Amendment does not necessarily authorize exemptions from applicable, nondiscriminatory laws even if they do burden one’s free exercise rights. Often left out of the discussion is an important second part of that decision- there is nothing wrong with the government- through statute or regulation- from granting exceptions to meet special accomodations.
First, let’s dispense with the phrase “person” in the law. To some, this indicates the individual while to others it also applies to corporations. In fact, Congress grappled with this question during the debate over the RFRA and in committee. The legislative history and record seems to indicate that certain “corporations” were intended to be covered. In either case, they certainly could have exempted corporations specifically if they so chose. Thus, the first question is whether a for-profit corporation, such as Conestoga Wood and Hobby Lobby, has any claim under this law.
This is where these companies may get into some trouble. Going back to our Founding Era, corporations were understood to be a collection of people who united for a common “good.” In essence, the formation created a unique “person” that enjoyed certain rights and shielded owners and investors personally from certain liabilities. Furthermore, at that time, corporations were considered to be either ecclesiastical or “lay” with the latter being today’s for-profit corporations and “ecclesiastical” being non-profits and certainly religious organizations. Most recently, a unanimous Supreme Court reaffirmed this dichotomy in the Hosanna-Tabor Lutheran Church case which stated that federal laws and regulations cannot dictate to religious organizations who to hire or retain. On the other hand, for-profit organizations have always been treated as a legal entity separate from the individuals that run, direct or own them.
The government argues (somewhat correctly) that should Holly Lobby prevail here, it will run counter to established constitutional law and perhaps equally important, established corporate law. Acceptance of Holly Lobby’s view, the government contends, would obliterate the wall of separation (like that one?) between the “corporation” and the people that make up that corporation. In that scenario, there would be no liability shield because the corporation and its owners would be one and the same. To a certain extent, Holly Lobby’s brief in this case somewhat erroneously insinuates that this “separateness” is the exception to the rule. If that is so, then it would truly upset centuries of corporate law.
However, there is a very important overlooked distinction in this case. Holly Lobby is a privately owned corporation headquartered in Oklahoma and held by the founding family, the Greens. In a publicly held company, the shareholders represent a plethora of religions and the probability of a company being run on religious ideals and practices is certainly very, very low. While they may adhere to a certain corporate morality that may indeed be based on religious beliefs, the “religious belief” is more diffuse, if it exists at all. We can all agree that a company as big as Exxon, for example, could not claim a religious exemption to any law or regulation and the same can be said of any corporation with many shareholders. However, in a privately held company such as Holly Lobby, or even in a publicly-held company comprised of two shareholders, there is a greater chance that how that business is run can be based upon religious beliefs and doctrine. For example, when Wal-Mart and its wholesale subsidiary Sam’s Club, were privately held by the Walton family, it was rare to find a Sam’s Club open on a Sunday (at least in my area). Likewise, Holly Lobby despite employs over 5,000 people nationwide in several states and follows through on the religious ideals of the Green family. They are closed on Sundays, they do not sell alcoholic shot glasses, they refuse beer advertisements on their trucks, their advertisements often reference “Jesus” or “Our Lord,” etc. That being said, they certainly do not discriminate against customers or employees. There are no signs at the doors warning away non-Christians. Their employment applications do not have “CHRISTIANS ONLY” emblazoned at the top.
So what does all this have to do with Obamacare? As part of that law, health insurance policies are required to cover certain contraceptive prescriptions as part of the basic coverage under the rubric of preventive services. For example, co-pays are not allowed for colon-rectal cancer screenings and the like. To the government, contraception is a “preventive service” which somehow ghoulishly equates pregnancy with colon or breast cancer; preventing pregnancy is equal to the early detection of cancer. [Personally, I would rather see contraception offered than to see babies aborted and become medical waste, but I digress.] Under Sebelius, the HHS has identified 20 acceptable contraceptive services. Holly Lobby contests only four of the twenty because they prevent the implantation of a fertilized egg. They include drugs like Plan B. In effect, it is not contraceptive services per se that Holly Lobby objects to, but abortificents because the Green family’s religious beliefs dictate that a fertilized egg is human life and should be respected and protected.
To look at this another way, it can be argued that a business clearly being run in accordance with Christian principles is being forced, via Obamacare, to adopt secular values- namely, the acceptance of these four particular drugs which prevent implantation and that do not deter fertilization. Thus, the liberal media and their academic allies are clearly trying to make this case appear as if Holly Lobby and other similarly situated corporations are perpetuating some battle against contraception. To illustrate the point, one need look no further than the New York Times and an editorial by Linda Greenhouse who has covered the Supreme Court for that newspaper and is a professor at Yale University. She characterized this case as an example of the “sustained aggressiveness of religious groups” to instill their theology on the law. In reality, it is the law attempting to aggressively instill secular thought on a company currently run under religious principles.
In the next part, I will discuss more liberal hypocrisy and arguments as well as some pitfalls of this case.