Text for the Week 5 presentation on the Religion Clauses of the First Amendment

Groups 8 and 9
Town Meetings Can Have Prayer, Justice Decide, text p. 46-47 of the Booklet

Groups  42-43-44-51

Obamacare and religious liberty. A corporate conscience?

The Economist, Oct 3rd 2013, by S.M.

When the Citizens United decision came down in 2010, 80% of Americans were unhappy to learn that political speech by corporations was protected under the first amendment. Three years later an effort to undermine Obamacare by expanding the constitutional rights of corporations is quietly gaining ground in the courts. The campaign includes some 73 cases challenging the law’s requirement that health-insurance plans provided by large employers include coverage for birth control. This contraceptive mandate, detractors say, presents organisations owned by religious individuals opposed to certain forms of birth control with a dilemma: abandon their beliefs or pay a hefty fine of up to $100 per employee per day.

Conestoga Wood Specialties, a cabinet manufacturer with 950 employees in Pennsylvania, is one of the plaintiffs challenging the mandate. Conestoga is owned and run by the Hahns, a Mennonite family that considers two forms of birth control—the emergency contraceptives known as Plan B and ella—to be the sinful taking of embryonic life. The family has objected to Obamacare's mandate on constitutional grounds and under the Religious Freedom Restoration Act (RFRA), a 1993 law requiring that “substantial burdens” on religious exercise be justified by a compelling state interest. (RFRA reimposed the “strict scrutiny” standard for federal incursions on religious liberty after the Supreme Court deserted it in its Employment Division v Smith decision in 1990.)

This past July, the third circuit court of appeals rebuffed the Hahns’ claim, insisting that religious free exercise is a "purely personal" right. In the opinion, Judge Robert Cowen of the third circuit wrote, “Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga.” Corporations may have mission statements. They may advance political positions and, since Citizens United, may spend freely to advocate for particular candidates. Corporate entities can even be said to have a "conscience" in the sense of acting responsibly and with regard to moral principles. But, citing a previous ruling, the court said corporations "do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors." […]

In its petition requesting Supreme Court review of the third-circuit decision, Conestoga presented the question as follows: "Whether the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the Affordable Care Act." It then noted that the court has repeatedly allowed corporations to bring free-exercise claims. This Court has allowed an Amish business owner to raise a free exercise defense to nonpayment of Social Security taxes... It has also let Jewish merchants challenge Sunday-closing laws on the same ground... These rulings were indisputably correct as neither RFRA nor the Free Exercise Clause contains an exception for activity carried out for profit. On the contrary, “religious exercise” under RFRA includes “any exercise of religion.”

The Obama administration disagrees. In its own petition the administration notes that Congress reined in the courts with the RFRA, bringing them back to pre-Smith standards. Even if the court finds that Conestoga enjoys a right to religious liberty, this right, like all constitutional guarantees, is limited. The administration implies that the promotion of public health, "unquestionably a compelling governmental interest", outweighs the corporation's free-exercise right (if it exists). It argues that increased access to contraceptive services leads to positive health outcomes for women and children. This is difficult to deny.  […] How the Supreme Court will sort this out is difficult to parse. The five conservative justices appear sceptical of Obamacare's underpinnings, while the four liberals on the court are unlikely to ratchet up constitutional rights for corporations. But it was Antonin Scalia who penned the 1990 Smith decision holding that courts should not carve out exemptions for people with religious objections to neutral, generally applicable laws.

1. Present the facts of the case as well as the parties involved. What legal question is raised by the case and what are the respective arguments of each party?

2. In light of previous rulings, can we guess in favour of which party the Supreme Court might rule? What could be the consequences of the Supreme Court’s decision?