Jewish Journal

Religious exercise, Hobby Lobby and Obamacare’s contraception mandate *

by Brad A. Greenberg

December 3, 2013 | 7:11 am

The Supreme Court yesterday declined to hear challenges to the Affordable Care Act (aka Obamacare) brought by Liberty University, a Christian school founded by the late Rev. Jerry Falwell. But the Court agreed last week to hear two related religious exemption cases regarding the Affordable Care Act's contraception mandate.

One of those cases, involving craft store Hobby Lobby, has received a lot of attention because it has been leading the fight against employers being required to provide contraception to employees. The other is being consolidated, and the facts are similar. Significantly, Hobby Lobby is a closely held family company -- i.e., no shareholders to report to. The company's leaders have asserted that religious beliefs prohibit providing contraception to employees, and thus the Affordable Care Act infringes on their religious exercise, entitling them to an exemption from the contraception mandate.

“My family and I are encouraged that the U.S. Supreme Court has agreed to decide our case,” said Mr. Green, Hobby Lobby’s founder and CEO.  “This legal challenge has always remained about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution. Business owners should not have to choose between violating their faith and violating the law.”

The case has yet to be argued, and because it is controversial, I wouldn't expect a decision until late in the term. It touches on both First Amendment and Religious Freedom Restoration Act claims. (The Court already heard in October another case involving whether prayers before municipal meetings violate the First Amendment's establishment clause. I've written about this issue before, and will again.) And it presents some interesting legal issues, on which new scholarship seems to be popping up on SSRN weekly.

The outcome of this case will have broad effects, both doctrinally and practically. The circuit courts have split on whether a for-profit corporation can bring a religious exercise claim. Mark Tushnet illuminates but does not answer that threshold question here. Indeed, the answer is unclear -- one reason this case seemed destined for the Supreme Court.

For those interested in more the legal manueverings, Eugene Volokh breaks down the issues at Volokh Conspiracy. Expect more from SCOTUSblog once oral arguments approach.

*UPDATED: Add the University of Notre Dame to the organizations claiming the Obama Administration is violating its free exercise of religion. Notre Dame, famously Catholic, is challenging the contraception mandate for employees and students in a lawsuit filed today. Birth control is prohibited by the Catholic Church.

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