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: Thomas Farr

The Supreme Court decision in Burwell v. Hobby Lobby is a clear victory for religious freedom and for women. It also raises some important questions for the future.

At stake in the case was whether the Obama administration in its HHS mandate could coerce an American family (the Greens, who created and run the Hobby Lobby stores) to set aside its deeply-held religious beliefs and provide, in its business health insurance plan, services that the family finds morally abhorrent and deeply sinful. 

The HHS mandate requires employers to provide insurance coverage, at no cost to recipients, for 20 devices or drugs, sixteen of which are contraceptives and four of which can act to induce abortions. The mandate also requires no-cost coverage for sterilizations. The Greens objected to participating in the provision of the four drugs or devices that can induce abortions. 

In its 5-4 ruling on June 30, the Supreme Court declared that an American family who runs a business (“a closely-held corporation”) has the same right to religious freedom that other Americans have. Further, the Court held that the HHS requirement that the Greens “engage in conduct that seriously violates their sincerely held religious beliefs,” plus the ruinous fines resulting from noncompliance with the mandate, would “substantially burden” the Greens’ right to free exercise of religion. This triggered a two-part test that the Obama administration failed to meet. 

First, the government needed to demonstrate a “compelling government interest” in substantially burdening the Greens’ religious freedom by forcing them to provide the mandated services or pay huge fines. The Court noted problems with the administration’s argument that providing these services was a “compelling” government interest. For example, thousands of employers and health care plans—representing millions of American women—are grandfathered in the plan and not compelled to provide these services. The administration’s insistence that the need to provide the services is “compelling” seems empty if so many are not subject to the mandate at all. In addition, the HHS-mandated services are widely available and most are inexpensive. The fact that there is a right to access them does not mean that employers or taxpayers should be required to pay for them, any more than my Second Amendment right to bear arms ought to bind my employer, Georgetown University, or American taxpayers to buy me a shotgun. 

If the Obama administration wants, as a matter of public policy, to provide cost free contraceptives, sterilizations, and abortion-inducing drugs, then it should bring that proposal to the American people through the legislative process. (It did not do so in the Affordable Care Act, which does not address these services at all; they were simply added by HHS). 

Notwithstanding these and other weaknesses in the administration’s case, the Court decided it was “unnecessary to adjudicate” whether the government had a compelling interest. It simply “assumed” for purposes of the case that this part of the test had been met.

The second test, however, the administration manifestly failed. This was the requirement to demonstrate that the mandated services were being provided to recipients in the “least restrictive way” possible—that is, that the HHS mandate would burden the Greens’ religious freedom in the least restrictive way. The Court noted too many other, far less restrictive ways to reach its goal of providing the services, including passing a law to provide them. If the government’s interest was so “compelling” why not simply make the services available by the state, rather than insisting they be provided by objecting religious families? 

The Court also addressed at least two of the red herrings proffered by opponents. First, by saying the ruling does not apply to publicly traded corporations, it did not empower the thousands of shareholders in IBM to sue on religious grounds—a practical absurdity. Second, it expressly noted that the decision did not permit employers to refuse on religious grounds to cover blood transfusions or vaccinations, something that to my knowledge has never happened.

But the Hobby Lobby decision, which applied only to small for-profit businesses, did not address directly the nonprofit suits that are making their way through the courts. A good example is the Little Sisters of the Poor who, like the Greens, object to the provision of abortion-inducing drugs in their health plans. Unlike the Greens, they also object to the contraceptives and sterilization. The Obama administration has offered the Sisters and other nonprofits an “accommodation,” i.e., that if they will sign and send to their insurer a statement that they object to the coverage, the insurer will then provide the coverage without cost to the Sisters. But the Sisters argue that this is no “accommodation” at all. It requires them to take an action which will inevitably cause the use of devices, procedures and drugs that they cannot support. 

And here lies a concern for the future. In his concurring opinion, Justice Kennedy seemed to emphasize a phrase from the majority opinion written by Justice Alito, that the accommodation has “effectively exempted” objecting nonprofits from the mandate. Kennedy wrote that the accommodation “does not impinge on the plaintiff’s religious beliefs.” One might conclude that Kennedy, whose vote will be needed to save the Sisters, is prepared to tell them they must comply. On the other hand, the majority opinion notes that the Court has never arrogated to itself the authority to decide “the circumstances under which it is wrong for a person to perform an act that is innocent in itself [e.g., sending a statement of objection to the insurer] or facilitating the commission of an immoral act by another.” 

When the Sisters’ and other nonprofit objections reach the Supreme Court, will the Justices decline once again to arrogate to themselves this authority? Or will they tell the Sisters to shut up and accept the accommodation? One can express the hope that our courts, and our nation, have not yet reached the point that we can no longer abide the moral and religious compunctions of the Little Sisters of the Poor. 

Some are making the strikingly dishonest charge that the Hobby Lobby decision represents a “war on women,” as if the decision denied women access to contraceptive services. That of course is not the case. Moreover, the “war on women” canard typecasts American women as mere biological creatures who believe that access to taxpayer-subsidized contraceptives, sterilizations, and abortion-inducing drugs constitutes America’s first freedom. Like Barbara Green, co-founder of Hobby Lobby, many women are heavily engaged in the world of business, and the world of civil society—charities, soup kitchens, AIDS hospices, universities, hospitals, and immigrant services. Many of these women, religious or not, will applaud the Court’s defense of America’s true first freedom. As the influential feminist group Women Speak for Themselves never tires of emphasizing, countries that respect religious freedom are far more likely to respect the rights of women.

Thomas F. Farr is director of the Religious Freedom Project at the Berkley Center for Religion, Peace, and World Affairs and Associate Professor of the Practice of Religion and World Affairs at Georgetown’s Edmund A. Walsh School of Foreign Service.

This piece was originally authored on June 30, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.