Crying Wolf on Religious Liberty
Editorial Board
March 22, 2014
This week, the owners of two secular, for-profit corporations will ask the Supreme Court to take a radical turn and allow them to impose their religious views on their employees — by refusing to permit them contraceptive coverage as required under the Affordable Care Act.
Editorial Board
March 22, 2014
This week, the owners of two secular, for-profit corporations will ask the Supreme Court to take a radical turn and allow them to impose their religious views on their employees — by refusing to permit them contraceptive coverage as required under the Affordable Care Act.
The Supreme Court has consistently resisted claims for religious exemptions from laws that are neutral and apply broadly when the exemptions would significantly harm other people, as this one would. To approve it would flout the First Amendment, which forbids government from favoring one religion over another — or over nonbelievers.
The showdown will take place Tuesday when the Supreme Court hears arguments on two consolidated challenges to the Affordable Care Act. The owners of Hobby Lobby, a chain of arts-and-crafts stores, and Conestoga Wood Specialties, a cabinetmaker, want to be exempted from the sound requirement that employer health plans cover without a co-payment all birth control methods and services approved by the Food and Drug Administration.
There are several reasons why the court should find that the law does not apply, starting with the fact that secular, for-profit corporations are not “persons” capable of prayer or other religious behavior, which is a quintessentially human activity. Also, as an amicus brief filed by corporate law scholars persuasively argues, granting the religious exemption to the owners would mean allowing shareholders to pass their religious values to the corporation. The fundamental principle of corporate law is a corporation’s existence as a legal entity with rights and obligations separate from those of its shareholders.
The claim that the contraception coverage rules put a “substantial burden” on religious exercise is very weak. The companies’ owners remain free to worship as they choose and to argue (incorrectly) as much as they want that some of the contraceptive drugs and devices on the F.D.A.’s list actually induce abortions. If an employee decides to use an insurance plan for such contraceptives, that would be a personal decision. It does not burden religious exercise.
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