Victorian postcard

Victorian postcard Wikimedia Commons

OK, there’s nothing more annoying than having someone say, “I told you so,” and thus, on those rare occasions when I make a correct prediction, I defer to that sentiment and restrain myself. But every now and then the impulse is irresistible, and today is one of those times.

Last March, after oral argument before the Supreme Court in the Hobby Lobby case, I wrote:

When the decision comes out in June, Hobby Lobby and Conestoga Wood will be given not an exemption to the contraception mandate but an accommodation comparable to what has been afforded to religious non-profits, under terms that define the nature and character of for-profit companies that can make free-exercise claims. Free exercise rights will thus be extended, but not at the expense of the government’s compelling interest in gender equity, which will be preserved via the requirement that the cost of contraceptive coverage be assumed by the insurers who administer the insurance plans of the qualifying companies.

You heard it here first.

Yes, you did. That’s exactly how Scotus has decided the case — and in a way that bodes well for those who want to assure that female employees of religious non-profits like the University of Notre Dame will get the free coverage of contraceptive service mandated under Obamacare.

In order to understand the decision, you have to know that it is based on the 1993 Religious Freedom Restoration Act (RFRA), which tells the court that in order to overrule a claim of religious free exercise (against federal law), 1) the state must have a compelling interest to do so; and 2) in doing so it employs the least restrictive means. In Hobby Lobby, the court assumed (without coming to an actual determination) that the state interest in providing the full range of contraceptive services was compelling, but (as I predicted) found that the Obamacare mandate was not the least restrictive means of fulfilling that interest.

The least restrictive means, according to the court, would be for the government itself simply to pay for the services. Not that a new government program would necessarily be necessary. Because ready to hand — and certainly less restrictive — is the accommodation whereby religious non-profits sign a waiver, after which their insurance provider or administrator must pick up the tab. Writing for the majority, Justice Samuel Alito kept open the option of rejecting such an approach for those (such as the University of Notre Dame) who find this too an unacceptable burden on their religious liberty: “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.”

But here’s where things get really interesting. Besides signing on with the majority, Justice Anthony Kennedy wrote a separate concurrence in which he took the position that there is indeed a compelling state interest in providing contraceptive services: “There are many medical conditions for which pregnancy is contraindicated. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”

And Kennedy declares as well that the accommodation for religious non-profits — now extended to closely held for-profits that demonstrate a bona fide claim to religious commitment — is indeed a valid means of reconciling the religious liberty and the coverage priorities: “In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here.”

Bear in mind that what the religious non-profits protesting the accommodation want is the exemption provided to actual religious bodies (like churches), such that female employees simply do not receive contraception coverage at all. A case involving that religious liberty claim is almost sure to come before the court next year. Kennedy’s concurrence provides about as clear an indication as there could be that he thinks the accommodation will pass muster under RFRA.

For that reason, Hobby Lobby will prove to be a significant setback for the Catholic bishops and other free exercise maximalists, a good omen for contraception coverage advocates, and a fine result for those interested in a reasonable balance of the interests at hand.

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Mark Silk

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life.

14 Comments

  1. Chaplain Martin

    Thank you Mark Silk. A voice of reason among the screaming reaction of such sites as Daily Kost, ACLU(of which I am a member) and others of the denial of women’s right to contraceptives. They don’t wont to remember that Hobby Lobby only objected to Four, yes four methods which were emergency type to prevent a fertilized egg from attaching to the uterus wall. This abortion in the eyes of the Green family owners of Hobby Lobby.
    I am not for making abortions illegal. but as Pres. Clinton said It should be legal and rare.

    Gosh, I though I was something of a liberal.
    Let’s see Notre Dame U. a so called non-profit which keeps adding millions of dollars to itself can sign a waiver but a reasonably smaller family owned company which hopes to make a profit cannot according to the “sky is falling crowd”.

    • Mind you, these are privately-held, for-profit corporations we’re talking about here, not a “non-profit” (I use the term loosely in this case) university like ND. And the crux of this decision is that a corporation, an instrument created to remove personal liability from business dealings, is ruled to have rights accorded to individuals. This is the wry-ist irony. And if you think its going to halt at the ACA provisions (which is really what the suit was about, not religion) then get ready to be surprised when a small business owner claims his religious belief that one should not take part in socialized care (Social Security, Medicare, or unemployment) sues to be exempted from paying the employers share of such withholding for his employees.

  2. Lynne Newinton

    Mark, I wonder if I may ask you to make a special mention of the grieving Jewish families and community for the loss of their young sons and the tragic circumstances of their death.

  3. What if a religious non-profit has health care insurance coverage from an insurance company that is a closely-held religious corporation? with the same held beliefs about providing contraception.

  4. Couldn’t disagree more! Especially with Mark the so called chaplin. This is nothing more than allowing corporations to claim that they disagree with ANYthing they don’t like on religious grounds. Nothing more than allowing Christians to discriminate against others on religious grounds. Certainly not what Christ preached, but what Christians are preaching from the pulpit. Remember the South of the 60′s and how some claimed they believed in segration on religious grounds. SCOTUS ruled against them then but with this neo-con 5 it’s open for review again. No gays no blacks, no Irish allowed signs etc will be popping up soon as a result of this decision. Funny thing, not what Christ preached either but when do we really pay attention to him? Nope just on the hate for others and money! That’s the religion of the neo- con Christian community today

    • Chaplain Norman Martin

      Kevan, I’m not sure that I’m the “Mark the so called chaplin” however since I received a email and opened it and there was your reply, I guess it’s me.
      I really liked what you wrote about many churches in the 60′s. Southern Baptist of which I WAS a member are making up for backing away from black discrimination to full fledged discrimination of women as pastors, teachers in seminary’s and colleges.

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