As the Hobby Lobby case, which challenges the HHS contraceptive mandate as a violation of the free exercise clause, comes before the Supreme Court, we ask what the outcomes may mean for religious freedom, American business, and corporate employees.

By: Helen Alvaré

Hobby Lobby and Conestoga Wood are the kind of cases that can engage the rapt attention of both lawyers and non-lawyers. They raise at least three questions the answers to which have direct effects upon ordinary citizens.The first question concerns whether or not for-profit corporations can assert legally religious free exercise claims under the statute called the Religious Freedom Restoration Act (RFRA). The federal government is claiming that religious exercise is allowed to private individuals—alone and in groups—to non-profit corporations, and even to persons running a for-profit business, so long as they are not incorporated. The for-profit corporations disagree. 

Lawyers will likely be fascinated by the way these cases handle questions of statutory interpretation, especially regarding

1) the historical accounts of corporations’ religious exercise
2) the interplay between state incorporation law and the law of religious freedom
3) and the implications for business owners who, for various reasons, are thinking about incorporating.

At the same time, the public can easily grasp what is at stake for them. This could include: 

1) effects upon (especially successful) business owners’ decisions about incorporating
2) and the potential disappearance from the business landscape of corporations who conscientiously object to whatever new policies the state adopts, either through its legislative arm, or through one of its many administrative agencies. (The contraceptive mandate at issue in Hobby Lobby and Conestoga Wood is just a regulation adopted by one agency under the authority of the President of the United States. It was not part of any legislation passed by Congress).

The public can also easily grasp what is at stake in that part of the free exercise test, where the complainant has to prove that he or she is “substantially burdened” by a law. The federal government is claiming that the government gets to decide whether or not it is burdening religious exercise. In these two cases, the government is claiming that the complainants are simply wrong to assert that their religion forbids them from insuring for drugs and devices (“morning-after” pills) that can destroy embryos after they are formed. The complainants, on the other hand, assert that their religion clearly forbids their facilitating usage of such drugs by buying the insurance that delivers them “for free” to employees and their daughters.The question—“who gets to decide when my religion is violated”—is straightforward, and citizens will sense a stake in the answer.

Finally, the government is arguing that it has a “compelling state interest” in providing certain drugs and devices to employees (and their children) of the objecting corporations. An important component of their argument is this: if a corporation refuses to obtain the mandated coverage, then X number of employees will not get what the government is seeking to deliver to them by means of private employers’ insurance policies. But this argument is self-justifying; there is virtually no escaping any government mandate if this point proves dispositive. If, in the future, the government decides that later-term abortions, or assisted-suicide drugs are part of the standard of good health care, and the corporation refuses to go along—voilà the government has a compelling state interest in giving employees access to something they might otherwise have to pay for. 

A final thought. Regulation of corporations is frequent, and increasing. Health insurance regulations affect corporations in particular because the United States is, for better and for worse, largely reliant upon a system of employer-provided health care. This mix has the potential for inviting an ever-increasing amount of government power into the lives of people tied to corporations—both owners and employees. If they fail to accede, they face the prospect of ruinous fines ($100 per day per employee). Citizens facing these kinds of conflicts with the government will demur from incorporating, leaving the field to others. 

Helen M. Alvaré is a professor of Law at the George Mason University School of Law, where she researches and writes about family law and the intersection of family law and religion. 

This piece was originally authored on March 23, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.