The issue in the case is whether a for-proﬁt business can claim free exercise of
religion as an exemption to a law mandating employers provide their employees
with contraception coverage.
Signed into law in 2010, the Patient Protection and Affordable Care Act contains a
provision mandating any business employing 50 or more people to provide health
insurance to those employees. The act requires that pre- and post-contraceptive
beneﬁts also be provided under the penalty of severe ﬁnes to the employer for
each employee not afforded the sanctioned coverage.
Hobby Lobby Stores, Inc. has over 500 stores and employs over 13,000 people. The
Green family–proprietors of Oklahoma-based Hobby Lobby and parties in the case as
individuals–runs their business, in part, based upon their religious beliefs. Closing on
Sundays, providing faith-based counseling and prohibiting the sale of alcohol-related
merchandise are just some of the ways the business reﬂects their own belief system at
a cost to their bottom line.
The individual Green family members, Hobby Lobby and Mardel, Inc., a Christian
bookstore run by Mart Green, claim that four out of twenty contraception methods
mandated by the ACA violate the First Amendment protection that “Congress shall make
no law…prohibiting the free exercise” of religion.
The suit was initially also ﬁled as a violation of the Religious Freedom Restoration Act (RFRA) of
1993. The government “shall not substantially burden a person’s religious exercise,”
the law states, unless such restriction is the least intrusive method to promote a
“compelling state interest.”
The Obama Administration argues that children and women’s health issues provide an
interest for the government to compel the requirement.
The Affordable Care Act provides for a waiver to be given at the discretion of the
Department of Health and Human Services–which is why Kathleen Sebelius, as
Secretary of HHS, was a party in the case. Sebelius stepped down from the position in the spring of 2014 and was replaced by Sylvia Burwell. One of the most important free exercise
cases–Cantwell v. Connecticut (1940)–also involved governmental discretion relating to
religious practice. Although in Cantwell those involved were practitioners of the
Jehovah’s Witness faith and not for-proﬁt corporations, the representative of the state
government “empowered to determine whether the cause is a religious one” proved to
be problematic and a decision was rendered in favor of the individual seeking faith
Decision: In a 5-4 opinion authored by Justice Alito, the majority found the ACA’s contraception mandate imposed a burden on the owners of Hobby Lobby, Conestoga Wood, and Mardel violating RFRA. According to RFRA, if a law imposes a substantial burden it can only do so in the narrowest of ways, must be tailored in the least restrictive means, and serve a compelling government interest. The majority wasn’t convinced that the mandate satisfied the least restrictive means test compelling privately owned companies such as these to provide all fourteen forms of birth control articulated in the law. Additionally, forcing the companies to pay the penalty for not providing contraception would cost them millions of dollars and qualify as substantial burdens. “If these aren’t and don’t, I don’t know what else would,” said Justice Alito in Court. Alito was joined by the usual lineup of conservative justices (Scalia, Thomas, and Roberts) and Justice Kennedy.
Justice Ginsburg read a dissent from the bench in Court in which she said reading RFRA in this broad way and allowing an exception for religious reasons “raises a host of ‘me too’ problems” in the future. The dissent went into foreboding discriminatory practices by companies who wish to use religion to avoid hiring or fire employees for reasons that conflict with their religious beliefs. Concern of how the rights of the corporate owners surpass the rights of thousands of their employees affected by the objection was addressed by Ginsburg who said “Your right to swing your arms ends where the other person’s nose begins.” (She was quoting Oliver Wendell Holmes, Sr.)
It’s worth noting that the majority addressed this concern, briefly, at the end of the opinion by stating this holding is very specific to this case and that it is not a green light for corporations to practice “invidious” discrimination.
For more on the arguments for and against this decision, see our post 5 Reasons Hobby Lobby was Decided Right/Wrong.