The immediate import of the Supreme Court’s decision seems to be that the two companies in question, Hobby Lobby and Conestoga Wood, will receive the same accommodation afforded religious non-profits; namely, their female employees will have the contraceptive services objected to by the companies covered by the insurance company covering or administering their plans.

Citizens rallied on the steps of the Supreme Court on June 30, 2014, after it sided with the evangelical owners of Hobby Lobby Stores Inc., ruling 5-4 that the arts-and-crafts chain does not have to offer insurance for types of birth control that conflict with company owners’ religious beliefs. RNS photo by Heather Adams

Citizens rallied on the steps of the Supreme Court on June 30, 2014, after it sided with the evangelical owners of Hobby Lobby Stores Inc., ruling 5-4 that the arts-and-crafts chain does not have to offer insurance for types of birth control that conflict with company owners’ religious beliefs. RNS photo by Heather Adams

How will that come about? Yesterday, White House press secretary Josh Earnest said that President Obama would have to work with Congress “to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.” But if the Administration could, on its own, provide the accommodation to religious non-profits, there’s no reason, so far as I can see, it couldn’t simply extend it to the two for-profit companies and any others it judges to meet the court’s standard of “closely held” and religiously bona fide.

On the other hand, this may be a clever way to put senators and representatives on record as supporting or not supporting contraceptive coverage. Surveys show that Americans support mandating coverage, and this could be a useful issue in a highly consequential off-year election.

Be that as it may, the larger question has to do with the extent of the ruling — whether it is, as Justice Ginsburg wrote in dissent, “of startling breadth” or, as Justice Kennedy indicated in his concurrence, carefully limited. I go along with UVA Prof. Douglas Laycock in taking the limited view, but let’s assume that next year at this time the court decides that, under the Religious Freedom Restoration Act, the state does not have a compelling interest in mandating contraceptive services in health insurance policies, and therefore rejects the accommodation for religious non-profits (and, by extension, faith-based for-profits). What then?

Well, there’s a potential partial remedy that no one’s talking about. Twenty-eight states currently mandate contraceptive coverage in their insurance law. While these states vary among themselves in the exemptions they permit, only one (Illinois) extends it to for-profit companies. In some cases, religious non-profits have escaped the mandate by self-insuring, thereby supposedly removing themselves from state jurisdiction in this regard, but the issue has never been litigated as far as the Supreme Court.

One way or another, a state mandate would likely go all the way up, and then the court would have an entirely different legal situation on its hands. That’s because the Religious Freedom Restoration Act doesn’t apply to the states. All the state would have to show was that its contraception mandate was, as Justice Scalia wrote in Employment Division v. Smith, a neutral law of general applicability.

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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.

9 Comments

  1. Chaplain Norman Martin

    Mark with all the speculation about the Supreme Court decision on the Hobby Lobby case maybe people like you and me and the many who have commented on it, need to take a break and relax a while.
    I am waiting to hear more from Brent Walker and Holly Holman of the Baptist Joint Committee for Religious Freedom. Also more from other groups on the separation of church and state. Those two people I mentioned are qualified to practice before the Supreme Court. The Hysteria this has caused seems to be far outreaching the parameters of the decision, but then again I’m not a lawyer.
    I know some may jump at the name, Baptist, above, check their website and you may change your mind.

    • The number of limitations to the decision, the court’s severe reluctance to make a ruling of general application beyond the most narrow argument shows a lack of good faith arguments in support of the ruling. It was clearly one made to justify a given end result rather than a consideration of the legal questions. The conservative wing does that quite a bit.

      Don’t expect this ruling to be applied elsewhere. Expect the federal district and appeals courts to find new and interesting ways to distinguish this ruling from whatever is in front of them.

  2. Yeah, you keep saying it but I still don’t believe that this is anything but allowing corporations to get out of providing insurance or any other benefit, service and to discriminate againste others based on “religious” beliefs. I’d like to call myself Christian but don’t want to be confused with those who have co-opted and corrupted the Christian church here in America for their own political and profitable gains. . I believe in equality for all and can’t and won’t accomadate those who use the Christian religion for the purposes of passing on their hate of others! In a few words, I’m disgusted with what I’ve seen out of our so called Christian leaders and their hate of anything that passes for the poor, or sick, or otherwise disaffected peoples. Christ taught love, taught us to help the poor and sick, not to hate those who are not like us but this church today preaches exactly the opposite. Disgusted, distrusting, and done with organized religion is what I am! This ruling is just another sign that the Christian church here in America is concerned with nothing but forcing their religious beliefs on others freedom be damned. Those on the SCOTUS who ruled in favor of this did so, ignoring law and instead favored their personal beliefs in ruling against freedom and equality. Welcome Christian Shaira law here in America. We condemn the Muslims for their Sharia law controlled countries but are well on our way to imposing our Christian law on the American people. Great for those who favor a theocracy and very bad for those who believe in personal freedom!

  3. samuel Johnston

    I am certain Alabama is not among the “Twenty-eight states currently mandate contraceptive coverage in their insurance law.” God’s assistants do not respect individual choice when it conflicts with their holy writ. Unfortunately, in our state, we are overrepresented with young women who have neither the education to avoid pregnancy nor the money to buy contraceptives. The result is the unwed mothers so decried by the God fearing.
    Also to blame is the Catholic Church (and its fellow travelers), which teaches the very questionable doctrine that a zygote is a human being, (not to mention the celebrated notion that contraception is sin). Educated, middle-class Catholics ignore this nonsense, but the poor and ignorant suffer the all to predictable results of unplanned families.

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