Thus, the business-friendly free speech argument soon, by gravitational force, began to create a business-friendly free exercise doctrine. The legislative history of RFRA makes virtually no reference to for-profit corporations. Nonetheless, two decades later the Supreme Court decided in Burwell v. Hobby Lobby Stores that RFRA protected even large commercial corporations against the Affordable Care Act’s requirement that employee health-insurance policies cover all medically safe methods of contraception.
Under the ACA and regulations implementing it, religious bodies (“houses of worship”) are entirely exempt from the contraceptive requirement. Religious non-profits are not exempt: They are “accommodated.” They need not pay for contraceptive coverage themselves; they simply certify their objection, and the third-party insurer provides the coverage without charge to employee or employer. For-profit companies, however, were expected to provide and pay for the employee coverage just like every other part of a medical policy.
The owners of Hobby Lobby Stores, a conservative religious family, wanted a veto over coverage of some methods of contraception. They were far from the only objectors, however. One who brought a similar religious claim, Michael Potter of Eden Foods, tipped his anti-regulatory hand when he told Salon, “I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that?”
Unless libertarian philosophers F.A. Hayek and Robert Nozick have donned pontifical robes, that is a political belief, not a religious belief. It says, with a straight face, that government regulation offends my religion.
The Supreme Court, 5-4, upheld Hobby Lobby’s religious-freedom claims. Neither Hobby Lobby nor the Court majority paid even lip service to the conscience rights of the employees. The government argued that, whatever the Green family might wish for their employees’ sex lives, those employees had a countervailing right to decide for themselves which methods of contraception are moral.
Only the objectors’ rights counted, Scalia said during oral argument. “If they wanted you to balance the interest of the religious objector against the interest of other individuals, they made no reference to that in RFRA at all.” Hobby Lobby’s counsel, Paul Clement, told the justices that “not all burdens are created equal”—burdens on employees are allowed, he explained; those on employers are not.
The Court agreed that Hobby Lobby was entitled to refuse the statutory coverage. The majority said that the government might try providing for-profit companies with the non-profit accommodation. The companies, however, did not commit to accepting that accommodation—and the non-profits themselves had already rejected it. A few days after the Hobby Lobby decision, in fact, the same Court majority entered an injunction blocking the religious non-profit accommodation. In a dissent for herself and the other two female Justices, Justice Sonia Sotomayor pointed out that only days before, “the very Members of the Court that now vote to grant injunctive relief concluded that the accommodation ‘constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.’” Her pen dipped in acid, she added, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”