Senior lecturer at Emory University School of Law and senior fellow at the Center for the Study of Law and Religion.
On Monday, the Supreme Court will release their decision in Sebelius v. Hobby Lobby, perhaps the most anticipated ruling of the season. The Justices are considering whether a for-profit corporation can refuse to provide certain contraceptive services in health plans offered to employees, on the grounds that doing so would violate the owners’ particular Christian beliefs.
Corporations have personhood, so the argument goes, and people have First Amendment rights. And even if the corporations themselves are not entitled to Free Exercise exemptions, the people behind the corporate veil, the business owners themselves, certainly are. The owners claim that they should not have to make sacrifices in their belief system just because the Affordable Care Act requires employers to cover contraception for employees.
If you have read any of the countless articles published about the case over the last several months, you get the sense that if Hobby Lobby wins, it would destroy the America we have all worked so hard together to build.
The government — along with countless media outlets — claims that allowing business owners religious views to burden the family planning decisions of employees will open the door for corporations to consider denying other benefits on the grounds of religious belief. Perhaps they will no longer offer equal pay to women, if their religion happens to find women inferior. Perhaps they will no longer offer health-care for employees in same-sex marriages, if their religion frowns upon such unions.
If the court decides that secular, for-profit corporations are entitled to First Amendment Free Exercise rights, then every business owner in the United States will suddenly be exempt from anti-discrimination laws, because they could now claim that their racist/misogynistic/homophobic/anti-semitic/fill-in-the-discriminatory-blank policies are based on religious belief. Goodbye, progress. Hello, legitimized hate.
At least that is what opponents of Hobby Lobby want you to believe. Fortunately, that is totally false. No matter what happens, America, and the American workplace, will remain safe.
This is not the first time that people have thrown around the slippery slope argument in regard to denying religious exemptions. In fact, the Supreme Court in Employment Division v. Smith (1990), one of the most criticized decisions in Court history, made literally this exact same argument. In that case Smith, a Native American employee, was denied unemployment benefits after he was dismissed from his job for using peyote in a religious ceremony.
The background for that case is as follows: Since 1963, the court had been using a strict scrutiny framework to decide whether or not a religious exemption should be granted. Essentially, if a law imposed a substantial burden on a person’s religious beliefs, forcing them to do or not to do something they felt was religiously compelled or banned, the person was given an exemption, unless denying that exemption was the least restrictive way of promoting a compelling government interest.
In the Smith case the court reversed itself, largely because the majority was concerned about a slippery slope of exemptions, noting that this kind of reasoning “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”
Except for the semi-obvious fact that this had already been the law since 1963, and no such thing had happened.
Congress was furious about this new encroachment on religious liberty and in 1993 they passed the Religious Freedom Restoration Act, which legislatively re-instated strict scrutiny for federal laws. This is the statute that Hobby Lobby is suing under.
So RFRA has been federal law for almost 21 years now. If you combine that with the pre-Smith era and you have almost half a century of strict scrutiny law for federal statutes.
Turns out the ‘floodgate’ for religious exemptions has been open for quite some time now, and — guess what? — America is still standing.
There are two main reasons why.
First, for all religious exemptions, the court is not tasked with determining whether a particular religious belief is correct, but whether it is sincerely held. We allow courts to determine sincerity in everything from immigration to marriage fraud to privately held religious beliefs. Why then should we worry that the court won’t be able to do so for businesses as well?
Second, and more importantly, even a sincerely held religious belief, such as a theoretical businesses owner’s belief that he must discriminate against women- will not be automatically given an exemption. Remember that the law still requires them to prove that not having the exemption creates a substantial burden on their belief-system. Even if they do that, even if they are burdened, they still won’t get an exemption in that case, because preventing discrimination is a compelling government interest.
This is the law. This has been the law. And it will be the law going forward.
Why is Hobby Lobby the first corporation in 21 years to bring this kind of case? Not because they are evil but because, under the law, they have a real and legitimate claim.
Despite what anyone wants you to think, this is not a case about a corporation trying to stop its employees from obtaining contraceptives or even abortions. Hobby Lobby is fine with its employees doing whatever they want to do; those are their rights. All Hobby Lobby is asking is that the government not force them to actually pay for four specific kinds of contraception out of a possible twenty varieties. Paying for those four, they claim sincerely, would create a substantial burden on their religious belief. The court is weighing whether having these particular four contraceptives paid for by the employer is a compelling government interest, and whether there is a less restrictive means of giving everyone what they need.
One way to solve this case would be to have the government chip in. They would not have to pay for all of the employees’ contraceptives, just those four types out of twenty that Hobby Lobby objects to. This solution wouldn’t impose any burden on Hobby Lobby, and would protect every employee’s entitlements. The government has indeed paid for religious accommodations in the past, in cases ranging from unemployment benefits to military exemptions. Hobby Lobby is just another case along the spectrum.
At the end of the day, whether Hobby Lobby wins or loses, if you have a legitimate and reasonable claim, the government will consider it. If there is a substantial burden, and the law in question does not promote a compelling government interest, or even if it does but there is a less restrictive means of promoting it, you will win. If you don’t, then they wont, same as it has always been.
Just don’t let yourself get fooled by this classic slippery slope misdirection. Hobby Lobby changes nothing about how businesses can operate.
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