In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has ruled that it violates the Religious Freedom Restoration Act (RFRA) for the Department of Health & Human Services (HHS) to require religious business owners to provide contraceptive and abortifacient coverage for their employees. HHS imposed the birth control requirement as a regulation issued under the 2010 healthcare law popularly known as Obamacare.
We previously argued that the requirement indeed violates RFRA, since the requirement substantially burdened the free exercise of religion, and was not the least restrictive means of advancing a compelling governmental interest (see here, here, and here). RFRA, which was passed by an overwhelming bipartisan majority in 1993, requires such religious exemptions to federal regulations. RFRA used to require such exemptions to state laws, not just federal laws, but the Supreme Court struck down RFRA’s application to state law on federalism grounds in 1997, holding that RFRA encroached too deeply on state sovereignty. By contrast, the Supreme Court continues to uphold RFRA against federal laws that restrict religious practices in ways not essential to vital government interests, such as ruling in favor of Native American claimants seeking to use controlled substances in their religious ceremonies, in its 2006 decision in Gonzales v. O Centro Espirita.
The Supreme Court ruled that RFRA applies to regulations that govern the activities of closely held for-profit corporations like Hobby Lobby. HHS made the catch-22 argument that such companies cannot sue because they are for-profit corporations, and that their owners cannot sue because the regulations apply only to the companies. That would leave no one who could sue over a RFRA violation. But as the Court noted, nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] corporations, . . . as well as individuals.” 1 U.S.C. § 1. Moreover, the Court’s earlier decision in favor of Native Americans in Gonzales had also involved a RFRA claim brought by a corporation, albeit a nonprofit. Indeed, churches themselves are commonly incorporated.
RFRA is a statute, but corporations have also been held to be entitled to most constitutional rights under Supreme Court decisions dating back almost to the founding fathers, such as Dartmouth College v. Woodward (1819). Moreover, as associations of persons, corporations have also been held entitled to protection under international human-rights accords like the European Convention on Human Rights.
It should be noted that I am not in any way hostile to contraception. (And one of my CEI colleagues has supported making Plan B contraception publicly available without a prescription.) After I was interviewed about this subject in the past, I received testy emails from uninformed people telling me not to impose my “religion,” and the teachings of my “church” on other people. While I have no objections whatsoever to birth control, I don’t seek to impose my own approval of contraception on churches that have objections to them. The wisdom of religious beliefs is immaterial for purposes of whether the Constitution protects them. As the Supreme Court has emphasized, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” See Thomas v. Review Board, 450 U.S. 707, 714 (1981). Thus, this is not, as some of those who have contacted me view it, about restricting people's “sexual choices.” It is merely about who will be forced to pay for other people’s choices.