Professor Ed Zelinsky published the following article in the Rutgers Law Review:
The Opinion Pages|EDITORIAL
One of the most anticipated showdowns of the Supreme Court’s current term will take place March 25, when the justices are scheduled to hear two cases brought by secular, for-profit corporations whose owners want an exemption, based on their religious beliefs, from the requirement that employers’ health plans cover the full range of contraceptive services without a co-payment.
The question before the justices is whether the requirement, part of the new health care law, violates the Religious Freedom Restoration Act of 1993, a statute designed to give even greater protection to religious exercise than the Supreme Court had deemed constitutionally required in a 1990 ruling.
Oddly, the Justice Department has relegated to a footnote what may be the strongest single argument against allowing the two companies to deny their workers contraceptive coverage that they would otherwise be entitled to under the health care law. That would be the Constitution’s establishment clause enforcing the separation of church and state and barring government from favoring one religion over another or nonbelievers. But that is exactly what would happen if the restoration act were to be read as a congressional order requiring federal courts to grant private for-profit employers an exemption that would effectively allow them to impose their beliefs on employees to deny them a valuable government benefit.Throughout the litigation, the issue has been framed in much the same way by both the companies and the Justice Department, which is defending the contraception coverage mandate. The companies — Conestoga Wood Specialties, a cabinet maker, and Hobby Lobby, an arts-and-crafts chain — argue that requiring them to include cost-free contraceptive coverage violates their religious liberty. The Obama administration argues that it does not, with much backing-and-forthing about whether corporations are “persons” covered by the act and whether the imposition on the companies rises to a “substantial burden” on religious expression, which the act forbids.
An amicus brief filed by Marci Hamilton, a professor at Cardozo Law School, calls on the Supreme Court to deny the claim of the employers with a ruling declaring the restoration act itself unconstitutional, noting the undue power it confers on religious entities to refuse to abide by valid laws that advance a public good.
The court is unlikely to go that far. But it should at least recognize that the establishment clause takes precedent over the restoration act, and in so doing prevents employers from invoking the act to force their beliefs onto employees who may not share them and who have beliefs of their own. This point is made in a brief filed by Frederick Mark Gedicks of Brigham Young University Law School and 20 other church-state scholars, noting that the court has consistently resisted religious exemptions that significantly burden other people. The justices should have the parties submit new briefs focused on the establishment clause and provide time to air it.