Professor Kate Shaw’s Texas Law Review article Beyond the Bully Pulpit won the American Constitution Society’s Cudahy Award on Regulatory and Administrative Law. Seventh Circuit Judge David Hamilton presented her paper at the ACS National Convention in early June. Congratulations to Professor Shaw!
By Clare O'Connor
June 24, 2014 Forbes - Sometime before June 30 — as soon as today, possibly — the US Supreme Court will decide whether a corporation can have religious beliefs.
The Justices are set to rule on whether the Affordable Care Act is infringing on craft store chain Hobby Lobby’s religious rights by forcing the company to provide full contraceptive coverage to its 13,000 workers as part of its health care plan.
Hobby Lobby’s evangelical Christian owners, the billionaire Green family, take issue with four of the 20 FDA-approved methods of birth control mandated under Obamacare: morning-after pills Plan B and Ella as well as two kinds of inter-uterine devices (IUDs, or coils as your mother might have called them).
They believe these to be “potential life-terminating drugs”, although current science does not support that these contraceptives are indeed “abortifacients.”
(You can read more coverage of the Hobby Lobby case, including the Greens’ perspective in their own words, here and here.)
But there’s far more at stake than the rights of women workers to contraception access, according to experts who’ve studied this case and its precedents.
“If the Supreme Court gives corporations rights under the Religious Freedom Restoration Act, it could be a sea change,” said Marci Hamilton, constitutional law expert and author of newly released book God vs. the Gavel: The Perils of Extreme Religious Liberty.
“Hobby Lobby is discriminating against employees who don’t share their faith. This is another step towards filling the workplace with coreligionists.”
Hers is a concern shared by Rev. Barry Lynn, executive director of Americans United for Separation of Church and State.
In a recent teleconference organized by women’s health advocacy nonprofit Catholics for Choice, he described a hypothetical Hobby Lobby victory as “a Pandora's Box with some very ugly creatures flying out.”
“Scientology-believing employers could insist on non-coverage of its nemesis, psychiatry,” he said. “Jehovah’s Witness-owned corporations could demand exclusion from surgical coverage, under the theory that so many of such procedures require the use of whole blood products forbidden by their faith.”
He added that the Religious Freedom Restoration Act now being debated in the Supreme Court was never intended to be used by large companies like Hobby Lobby, which operates 500 stores. Rather, when it was introduced in the early 1990s, it was intended for niche instances like the rights of Muslim firefighters to wear beards or the use of sacramental wine for religious services in otherwise dry counties.
“If anyone had suggested that a national chain of for-profit craft stores employing over 10,000 people could use this statute to avoid coverage of contraceptives in an insurance plan, it would have been a shot heard round the world,” Lynn said.
Catholics for Choice associate Meghan Smith described a Hobby Lobby victory as “tomorrow’s civil rights disaster,” adding that it could become commonplace for employees to fire workers for, say, being single and pregnant or using IVF, both of which are contentious in some religions.
“These cases are just the tip of the iceberg when it comes to the debate surrounding religious freedom in this country,” she said. “We believe ensuring equal access to contraceptive coverage guarantees women’s religious liberty rights.”
Hamilton believes a Hobby Lobby victory could result in “an explosion” of similar court cases. “The demand for religious liberty is insatiable, especially for groups who are proselytizing,” she said. “You’ll have people saying, ‘of course I can’t have a divorced woman who got an abortion on staff.’”
She added that corporations could decide they’re complicit in sin in providing a salary to support a family led by a gay couple. For-profit companies would be shielded in much the same way as Catholic charities are now, in that the law protects them if they refuse to facilitate adoptions for same-sex couples.
Both Hamilton and Lynn see a danger in allowing the Green family to violate the separation of church and state should they win their case.
“Hobby Lobby does not in any real sense engage in the exercise of religion as part of their functioning,” said Lynn. “The garden gnome cross stitch kits are not religious icons.”
He added that David Green’s personal evangelism doesn’t make Hobby Lobby a religious organization.
Hamilton’s concern lies in the Supreme Court essentially conceding that the four forms of birth control in question cause abortions, which they do not according to all current science on the matter. She added that many women use these contraceptives for medical issues entirely separate from family planning.
“The Greens are arguing that their beliefs determine medical science,” she said. “You cannot let them be the scientists.”