Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | News | Religion | Supreme Court

Supreme Court Limits Obamacare's Contraception Coverage


6a00d8341c730253ef01a73dd60f4d970d-300wiIn the words of Justice Ruth Bader Ginsburg, dissenting today in Burwell v. Hobby Lobby:

In the Court’s view, [the Religious Freedom Restoration Act] demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent. 

"Havoc" is one mild, understated way to put it. I would add "dangerous," "unprecedented," and "violent."

BrYbC7YCMAAOCqRWhen last we heard about Obamacare, the number of enrollees had exceeded certain Administration expectations. But if you recall, these enrollments were only allowed to happen after the Supreme Court concluded that the central piece of the law -- the individual mandate that requires people to have insurance -- is constitutional.

Today, Obamacare is back in legal news. In a 5-4 decision in Hobby Lobby, the Court held that family-owned corporations can opt out of generally applicable laws for religious reasons. You can read the full decision here. I previewed the legal issues back in March because this case has dangerous implications for the future of LGBT equality.

This case is a so-called religious freedom challenge to a federal law. The Affordable Care Act requires that health care plans provide their customers with certain contraceptives and contraceptive services free of charge. Hobby Lobby, a closely-held (that is a fancy legal term for "family-run") chain of retail arts and crafts stores run by a deeply religious family, took issue with providing its employees with contraceptives that it believed violated the owners' religious beliefs. The company challenged the requirement, arguing that corporations can have religious rights, should be able to sue to protect those rights, and that Obamacare violated its freedom of religion.

Many of us are concerned about our health care and the health care of others. This decision impacts directly all of us who work for companies that provide health insurance: granted, today's decision only applied to private, closely-held companies; but there is little in the opinion to prevent expansion down the road.

However, more to the point, Hobby Lobby sets a dangerous precedent in the gay rights universe. Gay equality laws -- from marriage equality laws in New York to the Employment Non-Discrimination Act that passed the U.S. Senate -- have religious exemptions. States that gained marriage equality by judicial decision still have vocal opponents whose arguments (perhaps pretextual) are based on religious freedom. They say they should not be forced to bake a cake for a gay wedding, or rent out their catering halls for gays, or provide any services to gay couples because they oppose gay marriage. If Hobby Lobby, an arts and crafts company that has nothing whatsoever to do with religion, can exempt itself from a federal law aimed at providing equal access to all, then perhaps a baker or a florist or a limousine driver can do the same to us.

Religious exemptions and religious freedom arguments can grow to a point where they endanger equality. Our community cannot simply be satisfied with Windsor, the post-Windsor marriage equality winning streak, and the prospect of an impending second shot at the Supreme CourtHobby Lobby could undo much of it.

AFTER THE JUMP, I discuss the Hobby Lobby decision, its dangers, and its limitations.

Let's first be clear about one thing: This case did nothing to the individual mandate. Nor did it challenge the underlying legality of the Affordable Care Act itself. Whatever your opinion of that law, this case could never be the vehicle of its undoing.

The legal question was whether Obamacare's contraceptives requirement violated a law called the Religious Freedom Restoration Act, or RFRA. RFRA, passed in 1993 and signed by President Clinton, was the culmination of a 40 year legal struggle about religious exemptions: if you feel a general law forces you to violate your religious beliefs, can you be exempt from that law?

RFRA gave religious objectors a statutory presumption of exemption: the default would be that persons could demand an exemption if the government's law substantially burdened your ability to exercise your freedom of religion.

But Hobby Lobby gives us something different. RFRA never said that it applied to corporations, but today, the Court, as it did in Citizens United, concluded that Congress wrote RFRA with the standard rule in law that corporations are people, too. Lawyers and law students are familiar with the corporation-as-person fiction. It pops up in first year civil procedure classes. However, privileging corporations as persons for the purposes of freedom of speech and religion was unprecedented and unthinkable before the Roberts Court.

6a00d8341c730253ef01a3fcde7969970b-800wiJustice Ginsburg noted this in her strong dissent:

The reason why "religious exemptions had never been extended to any entity operating in 'the commercial, profit-making world"

is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations... The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.

The majority, in a decision written by Justice Alito, found that the Obamacare contraceptive requirement substantially burdened the religious freedom of the owners of Hobby Lobby. Otherwise, the Court argued, it would put families who want to go into business or who own a business already in an impossible situation: either get out of business or violate their interpretation of the word of God.

Never before has someone's particular interpretation of religious scripture been enshrined as law so as to affect so many innocent people.

Justice Ginsburg is right. By giving family-run companies the right to opt out of generally applicable laws, the Court has ignored the fact that it is privileging companies over persons, owners' religious beliefs over employees', the beliefs of those with greater access to capital and investment than those of the working poor. The decision is also illogical: corporations do not enjoy the exact same legal status as individual persons. Even if we limited the decision, as the Court attempts to, to closely-held, family-run corporations that are "extensions" of the owners, there is no logical reason why we should stop there. For-profit public companies are "persons" for the purposes of being hauled into court and being served notice of process. It is not clear to me how the Court majority expects to limit its decision to the Hobby Lobbys of the world when there are many other religious people out there aching to use their religion as a pretext to cut costs, discriminate against women and gays, and maintain a stranglehold on the old order.

010_alito_croppedThe decision will open the federal courts to a flood of challenges by corporations and not just religion-based challenges. The Court basically concluded that closely-held corporations are persons for the purposes of religious exercise, just like all corporations are when it comes to speech. If they are persons, they have all the rights of persons. This decision could be broad depending, as is always the case, on how future appellate and district courts interpret it.

Therein lies the danger for the LGBT community. The Court's conclusion that family-run companies can exempt themselves from generally applicable laws could allow a family-run bakery to humiliate and discriminate against a gay couple looking for a cake for an upcoming marriage. It may allow a for-profit catering hall with no connection to a church to claim that its owners belief in the truth of Leviticus allows them to kick out two lesbians who want to get married there. It may allow companies to fire their employees for being gay even in states that ban such discrimination. It may allow a donut hole to be eaten out from full LGBT equality, consigning us to second-class citizenship in the name of pretextual religious freedom.

Of course, Justice Alito and his conservative colleagues are quick to argue that their decision did not go that far. Hobby Lobby applies only to family-run companies and only in the contraceptives context. But make no mistake: the reach of this decision could be vast. Just like the post-Windsor winning streak has shown the reach of the Supreme Court's decision striking down DOMA, we will only start seeing a small percentage of the effects of Hobby Lobby when the lower courts give us their first interpretations. The real effects may go unseen: they will be in the health care plans dropped, in the increased health care expenses seen by women, in the lack of access to birth control, and, most ominously, in the continued restriction of choices women have when it comes to protecting their bodies and health. The effects may also be seen in an erosion of LGBT equality.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. All organized religions are, in their essence, businesses run to make money. La Cosa Nostra was modeled on the Vatican, to give you an idea of how they have historically conducted that business. For those reasons, the views of religious organizations should not be treated differently, in a legal sense, from those of McDonalds or Google or GE.

    Posted by: jason MacBride | Jun 30, 2014 1:01:36 PM

  2. It's not just Hobby Lobby: These 71 companies don't want to cover your birth control either:

    Posted by: Mike | Jun 30, 2014 1:03:16 PM

  3. Considering "private, cloely-held corporations" make up nearly 90% of all corporations, why does the media's insist on the word "only" when writing about this decision(as you do? Everything is written as if these are a small minority instead of the vast majority of corporations. If you are going to say "only," you should inform readers that the word is virtually meaningless in this context. Or just don't use it.

    Posted by: DenguyFL | Jun 30, 2014 1:09:26 PM

  4. Terrific news! Our fascist Liberal dictator does not get to infringe upon the religious convictions of our fellow Americans. The LGBT left always complains about tolerance but we have so little tolerance for those with moral convictions that don't mirror the cult of effeminacy that the LGBT community so heavily promotes.

    If you want decent, upstanding members of our society to put up with the Pride parades that are little more than an excuse for libidinous gay men to dance naked and perform simulated sex acts, then we must tolerate and accept the religious convictions of the straight community.

    Posted by: Rick | Jun 30, 2014 1:13:27 PM

  5. First of all, while losing your ability to force a private company to hire an LGBT, or to do business with an LGBT is annoying, and may even cause mild hardship in extreme cases, it should never be called "Dangerous". That is hyperbole.

    Second of all, I'd like to point out something that IS "dangerous" - and that is attacking Amendments in the Bill of Rights. That is a REAL serious danger to your right to life, liberty and pursuit of happiness. This article is relentless in its attack on the right to freedom of religion. Make no mistake - you alter freedom of religion and the rest of the 1st amendment will follow eventually. Its time to get your priorities straight.

    Posted by: Kerry Smyth | Jun 30, 2014 1:16:46 PM

  6. Actually, Kerry Smyth, it's an article on the attack of FREEDOM FROM RELIGION.

    wise up, chump.

    Posted by: Little Kiwi | Jun 30, 2014 1:21:12 PM

  7. Thanks Mike. Great to have a fresh boycott list. These companies make their beliefs clear, and reasonable Americans will seek work elsewhere. The job applicant pool will shrink for these whackos, and they will lose talent. Fundamentalists are known to have lower IQs.

    Posted by: Jude | Jun 30, 2014 1:26:10 PM

  8. Ari,
    Go buy your own condoms. And pay for your girlfriend's birth control out of your own pocket. Oh, wait...

    Posted by: AG | Jun 30, 2014 1:27:53 PM

  9. Kerry, Little Kiwi is right. It is freedom FROM religion. Think back to the early European settlers. Think hard.

    Jesus didn't form a business. In fact, Jesus would encourage you to donate all your belongings to others. How's that going? Here's a win-win: How about donate some of your condoms?

    Posted by: Jude | Jun 30, 2014 1:31:57 PM

  10. I have no idea how this ruling will be enforced. How does a company apply for an exemption? What if there are no health care plans that don't have contraception coverage in a particular state? It looks like a ruling with no teeth whatsoever.

    The ruling changed little from the point of view of the employee. Contraception coverage was new to the ACA and was rare prior to that. It was a compromise between Pelosi and hardlined feminists that wanted free "abortion on demand" coverage. The latter would have never passed the House. Under the new law, small businesses could have dropped coverage entirely, forcing their employees to get individual policies.

    Corporation are "persons" under the law and always have been. To "incorporate" is Latin for "Put into a body" or "To make corporeal". It's the only way corporations can own assets or sign contracts. They have first amendment protections as well. There is also no distinction under the law, ignoring the tax code for a moment, between for profit and non-profit corporations. You might think that a church and Walmart are two entirely different things, but legally they are not. You could have a for profit church, though there's little incentive for churches to do that.

    Where cases might get a bit hairy, but this is never considered, are with "Trusts". They don't have the same legal standing as corporations yet there are several hundred politically active trusts in the US. Their first amendment status has never been tested. Also, labor unions are in a gray area legally as well. They are not corporations, but the Supreme Court has given them first amendment rights too. This means that all the arguments that apply to employers lording it over their employees and not respecting the views of their employees also applies to labor unions.

    Posted by: anon | Jun 30, 2014 1:34:09 PM

  11. @ "If you want decent, upstanding members of our society to put up with the Pride parades that are little more than an excuse for libidinous gay men to dance naked and perform simulated sex acts, then we must tolerate and accept the religious convictions of the straight community"

    Who invited those straight motha' f.ckas to the Village for Pride Weekend?

    Well, I guess Rick's medication doesn't work well the after the last Sunday in June. Too much GAY for him.

    Posted by: Derrick from Philly | Jun 30, 2014 1:34:42 PM

  12. RICK is pathetic and closeted bigot ass.

    Posted by: ppp | Jun 30, 2014 1:42:16 PM

  13. The fact that Rick can go from arguing in one thread about Tim Cook and Apple employees marching in a gay pride parade to describing such parades as "libidinous gay men to dance naked and perform simulated sex acts" is the pinnacle of trolling. And truly reveals what a self-hating, loathsome creature Rick is.

    Posted by: crispy | Jun 30, 2014 1:49:40 PM

  14. Crispy,

    just because some gays are faking a family-friendly atmosphere doesn't mean the nature of the "beast" has changed. Let's not kid ourselves: gay culture is a cesspool of debauchery and flagrant disregard for common sexual decency masqueraded as "freedom" and "bravery." Roided gym bunnies in speeds on a corporate-owned float dancing to the trite pop music of shallow female pop singers is not and never will be acceptable, nor should it be. We should be striving for a more normalized existence. Its the only way the LGB community can thrive.

    Posted by: Rick | Jun 30, 2014 1:52:29 PM

  15. Why do people, real or fake, like Rick read this blog? Is it satire? I don't think so, but it's close.

    Posted by: emjayay | Jun 30, 2014 1:55:38 PM

  16. Emjayay, some of us are trying to enact change. You should try it. It's a much more satisfying life to not tow the party line and stand up for the Masculine ideal that used to mean something.

    Posted by: Rick | Jun 30, 2014 1:57:42 PM

  17. I'm surprised Ari raises the canard of this applying to gay marriage issues. The Hobby Lobby decision is based on the religious liberties of a law, the Religious Freedom Restoration Act; not the U.S. Constitution.

    Gay marriage bans are being overturned on constitutional grounds. The Hobby Lobby decision does not grant any company or person religious liberty exemption from constitutional requirements, merely from laws. Dangerous as that may be for the rule of law, it is not a licence to discriminate on the basis of objection to same sex marriage.

    Posted by: Zlick | Jun 30, 2014 2:25:16 PM

  18. Hey, Rick. No matter how much unintentional comedy you post, your trailer trash relatives in the Deep South still won't invite you over for holidays. Too bad you identified with your oppressors: the stupid relatives who gave you such a bad time when you were growing up because, in their opinion, you were "gender non-conforming." Any video you post will show other commenters how gender non-conforming you are, which is why you never post videos of yourself on the Internet. Ask your trashy Southern Baptist relatives to check out aluminum brightening products for the aluminum siding on their trailer homes.

    Posted by: Artie_in_Lauderdale | Jun 30, 2014 2:49:20 PM

  19. I hope I've got this right :

    Corporations/owners can negate their employees rights to equal insurance cover because those corporations/owners have particular beliefs.

    If that is correct, I'm horrified.
    It means that private whackey bigotry gets free rein to deny equality on the basis of unscientific notions of the paranormal/supernormal/abnormal.

    Posted by: JackFknTwist | Jun 30, 2014 2:50:01 PM

  20. There is only one imperative;
    Scalia must go.

    Posted by: JackFknTwist | Jun 30, 2014 2:51:49 PM

  21. And Ari's absolutely right:
    Alito will be the biggest obstacle to all progress in social issues for the next generation.
    He's like a stealth Opus Dei implant.

    Posted by: JackFknTwist | Jun 30, 2014 2:54:08 PM

  22. By the way, Rick, what exactly does a religious exemption for birth control coverage in health plans (which mainly affects straight people) have to do with gay people or effeminacy? How do you segue from one issue to another like that? Are you just obsessed with admiration for religious nutcases like your stupid relatives? Have they punched you in the face lately? Give them a month or two.

    Posted by: Artie_in_Lauderdale | Jun 30, 2014 2:56:03 PM

  23. As usual, Ari's analysis is full of holes. To take one example, he fails to discuss the fact that RFRA, a federal statute, is inapplicable to state and local governments. It originally was intended to apply to the states, but that part of it was struck down many years ago.

    Anti-discrimination laws covering LGBs are found at the state/local level. So the issue then becomes the state versions of RFRA. Some states have a version of RFRA on their books and others don't. Ari says nothing about this.

    As to those states which do have a version of RFRA, there should be a serious push to clarify that those state laws do not extend to corporate entities or alternatively, that they are not intended to limit enforcement of anti-discrimination laws. In blue states, this should be possible to do. In red states, not so much.

    Thanks for sub-par writing as usual Ari! The one thing you excel at is shilling for anti-gay bully Dharun Ravi!

    Posted by: Frank | Jun 30, 2014 3:02:05 PM

  24. You might live in New York or thereabouts now, but tell us, Rick. Which sorry-ass little corner of Georgia did you slip out of ?

    Posted by: Artie_in_Lauderdale | Jun 30, 2014 3:04:42 PM

  25. it is time to end the idea of jobs for life . the supreme court needs to have a code of conduct forced on it because it has lost the idea of separation of church and state and people's personal freedoms . the roberts court is nothing more than a tool of 3the right wing fanatics

    Posted by: walter | Jun 30, 2014 3:08:18 PM

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