Hobby Lobby in the Long Run

Ruling in favor of Hobby Lobby, the Supreme Court decided that companies with religious objections cannot be required to provide health coverage for certain contraceptive services. In this week’s conversation, scholars discuss the implications of this decision for religious freedom and explore the wider role of religion in American public life.

By: Robert Tuttle and Ira Lupu

Prior to the Supreme Court’s decision in the contraceptive mandate cases, both of us published blog posts that emphasized the potential harm to women’s interests that a religious exemption for Hobby Lobby would cause. (See the previous Cornerstone posts “The Constitutional Costs of Religious Freedom in the Marketplace” and “The Flaws of Individualized Religious Exemptions,” in addition to “Symposium: Religious Questions and Saving Constructions.”) What we perceived as the central legal question has mapped onto the salient political question—whether religious objections to contraception should be allowed to trump women’s interests in access to contraception.

This way of understanding the case deeply informs the Supreme Court’s opinion inBurwell v. Hobby Lobby. In ruling that the government failed to prove that it used the “least restrictive means” to accomplish its purposes of advancing women’s health, the Court relied heavily on two alternative means by which the government may achieve the same goal: 

1. Provide contraceptive services at the government’s own expense to women whose employers object to coverage, or
2. Extend the current accommodations of religious nonprofit organizations (schools, charities, hospitals, etc.) to for-profit firms like Hobby Lobby.

Indeed, Justice Kennedy’s concurring opinion took pains to emphasize that the government’s interest in the reproductive health of female employees is indeed compelling. His opinion also suggests that direct public payment for a separate program is unnecessary when the government already has in place an accommodation that “equally furthers the Government’s interest [in women’s health] but does not impinge on the [Hobby Lobby’s] religious beliefs.” In Justice Kennedy’s view of the case, both sides ultimately can satisfy their interests. 

But “ultimately” may be a long time, and the path to satisfying all interests will be complex and full of legal uncertainty. If the federal government intends to subsidize contraceptive services for the employees of Hobby Lobby and similar firms, it will require congressional authority to make such expenditures. There is no reason to believe the House of Representatives would even consider it, much less approve it. 

The more readily available alternative for the government is to include for-profit firms in the existing accommodation for objecting religious nonprofits. The existing accommodation—under which insurance carriers pay for contraception outside the insurance policy, rather than through it—cannot be extended overnight. Any such policy change will have to go through the regulatory process, with an opportunity for comments from affected parties (including insurance companies, some of which will balk at this new requirement). This process is likely to take a few years, not a few months; in the meantime, employees of religiously objecting companies will have no insurance coverage for the contraceptives at issue. 

Moreover, the existing accommodation faces significant legal challenges of its own. A number of religious nonprofits have filed lawsuits, arguing that the accommodation fails to address their religious objections. If the existing accommodation is extended to Hobby Lobby and other objecting for-profit companies, they may also decide that the accommodation fails protect their interests and sue under RFRA. No one knows if the government will ultimately prevail in the lawsuits filed by religious nonprofits, and it will take at least a year for the Supreme Court to decide whether the existing accommodation is legally sufficient. Even if the Court decides that the accommodation is insufficient for religious nonprofits, it could decide that the accommodation is adequate for commercial entities. 

Fortunately, the fulcrum on which this case turns—the ability of government to satisfy both religious interests and the competing concerns of employees and their dependents—suggests that Burwell v. Hobby Lobby is not nearly so sweeping or radical as it may seem. Although it is true that for-profit firms can now bring RFRA claims, most claims by for-profit employers to escape their legal obligations will not fare so well. For example, the government has very strong interests in combating employment discrimination, and the government has no obvious alternative means to accommodate the interests of employees in not being the victims of discrimination. We suspect that the next round of RFRA cases (once the contraceptive cases are fully resolved) will involve religious objections by employers to paying spousal benefits for the same-sex spouses of LGBT employees. There is every reason to believe that a majority of the Supreme Court (though not today’s majority) would find a compelling government interest in ensuring that no discrimination occurs against partners in same-sex marriages, and that the government has no ready alternative to make up for the losses that such discrimination would cause. 

Burwell v. Hobby Lobby is a dramatic chapter in the story of religious freedom and the ACA. And it will, for some time, impede the full realization of the women’s interests at stake. But the government will likely respond to fill that gap, and in the longer run, we suspect that Burwell v. Hobby Lobby will generate few, if any, additional victories for commercial employers seeking to impose the costs of their religious convictions on their employees. 

Robert Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion at the George Washington University Law School, as well as professor of Religion in the university’s Columbian College of Arts & Sciences. Ira C. Lupu is the F. Elwood and Eleanor Davis Professor of Law Emeritus at the George Washington University Law School, which he joined in 1990. 

This piece was originally authored on July 1, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.