It now seems almost certain that something I predicted in December will occur: within the coming year, the Supreme Court will decide whether private, for-profit businesses can claim a religious opt-out from a generally applicable law based on the religious beliefs of the owners. If the Court rules that such a claim is permissible, there will be far-reaching ramifications, including for civil rights laws that include protections for lgbt people.
The cases most likely to first reach the Supreme Court involve businesses that want an exemption from the requirement under the health reform law that workplace health insurance plans cover contraceptive services. There are now two circuits in conflict on this point, in these cases: Conestoga Wood Specialties v. Secretary of Health and Human Services (Third Circuit) (ruling that business could not claim exemption) and Hobby Lobby Stores v. Sebelius (Tenth Circuit) (ruling the opposite) . Attorneys in the first case have already announced that they will file a cert petition.
Meanwhile, waiting for the other shoe to drop – A case raising the same question in a public accommodations context is pending decision before the New Mexico Supreme Court. If the defendant there – a photography studio that refused to record a commitment ceremony – loses, you can bet that there will be a cert petition filed. The same conservative legal group that represents the defendant in New Mexico is filing the petition in the health reform case. The state supreme court decision could be announced at any time.
[The issue] will confront the Justices for the first time with the scope of religious rights — if any — that a business firm may claim, seeking protection under the First Amendment.
More than sixty lawsuits have been filed in federal courts around the country, challenging the so-called contraception mandate written into the Affordable Care Act. Applying to employers with more than fifty employees, the mandate requires health insurance that covers a variety of birth control and reproductive health screening measures. The lawsuits have been pursued on religious grounds both by non-profit colleges and hospitals, as well as by profit-making business firms.
The Obama administration has mounted a vigorous defense of the mandate across the country, and the mandate’s challengers have been equally energetic in seeking to nullify it as a deep intrusion on religious freedom. The administration has written implementing rules that seek to protect some religious institutions, but the exemptions do not go far enough to satisfy some non-profit entities, and are not available at all to profit-making businesses…
The Third Circuit case … involves a Pennsylvania corporation that makes wooden cabinets. All of its stock is owned by the Hahn family, who practice the Mennonite faith…
The U.S. Solicitor General will be making the decision whether to ask the Supreme Court to review the Tenth Circuit decision. That ruling found that the contraception mandate intruded unconstitutionally on the religious rights of two family-owned Oklahoma corporations — Hobby Lobby, which runs a chain of retail crafts stores, and an affiliated retailer of Christian literature.