Religious Privilege Disguised as Religious Freedom Goes to the Supreme Court

November 27, 2013

On Tuesday, the Supreme Court announced that it will hear arguments in two cases regarding the contraceptive mandate of the Affordable Care Act, which requires all employers, apart from houses of worship, to provide or arrange coverage for birth control without charging a co-payment.

In Hobby Lobby, the U.S. Court of Appeals for the Tenth Circuit held that the plaintiff, a for-profit chain of arts supply stores owned by devout Christians, had shown a significant likelihood of success in proving its “right” to religious free exercise was substantially burdened by the requirements of the mandate. By contrast, in Conestoga Wood Specialties, the U.S. Court of Appeals for the Third Circuit found no such likelihood of success for a similarly situated for-profit corporation, also owned by a religious family. 

These cases are of the utmost significance. They are not just about the legality of part of the “Obamacare” legislation. The Supreme Court also faces a decision of incredible magnitude regarding the degree to which religious belief can be used as a means of avoiding legal obligations, and, even more critically, whether for-profit corporations can possess the right to free exercise of religion which has throughout the history of the United States been seen as a right for individuals.

If the Supreme Court determines that a for-profit corporation can be religious, and exert religious rights, the effects will reach far beyond contraceptive care. For-profit corporations owned by Southern Baptists may able to claim religious-based exemptions to hiring homosexuals; a corporation owned by Jehovah’s Witnesses could seek a religious exemption to providing health insurance for its employees that included blood transfusions; and a Wahabi Islamic owned car dealership could refuse to sell cars to women, on the grounds that the owners’ religion prohibits women from driving. Almost every part of law would be affected by the radical idea that a for-profit entity possesses free exercise rights.

The Center for Inquiry (CFI) believes that the Tenth Circuit simply got the case wrong. As we outlined in an April 2013 letter to the Department of Health and Human Services (HHS), providing insurance that permits an employee to choose to use contraceptives is not a substantial burden on religious belief any more than providing a salary that permits an employee to choose to purchase pork or consume alcohol would be. Moreover, the interest of the government in providing safe, affordable access to reproductive health care for women is most certainly a compelling one. And equally importantly, the right to religious freedom enshrined in the First Amendment to the U.S. Constitution is the birthright of individual citizens, not corporations established to make profits.

The Center for Inquiry has always, and will always, defend the right of individuals to worship or not worship as they choose. However, we will also always fight to ensure that the government does not unfairly prioritize or promote religion, forcing it into people’s lives. A woman’s rights to safe, affordable birth control should not depend on the religious preferences of her employer. A gay person’s right to earn a living should not be placed in jeopardy because a stockholder in a for-profit corporation finds homosexuality to be sinful. Society’s right to a secular government, free from persecution of or state support for religion, is under attack in these cases, and the Center for Inquiry will fight to defend the Constitution. We will be submitting a brief in these critical cases.