By Ruth Marcus
WASHINGTON: In the context of talking about limits on free speech, it’s common to say that your freedom to swing your fist ends where my nose begins. That seems like a sensible way to think about the freedom of religion case just argued before the Supreme Court: whether employers can be required to pay for contraceptive methods that would violate their religious convictions.
Most disputes about religious freedom are bilateral — with the government on one side and the individual claiming infringement of religious liberty on the other.
But Tuesday’s cases, involving Oklahoma crafts store Hobby Lobby and Pennsylvania cabinetmaker Conestoga Wood, implicate a third party — the companies’ employees, and their rights under the Affordable Care Act to no-added-cost contraception. Respecting the religious claims of Hobby Lobby and Conestoga Wood threatens to diminish the rights of their workers.
Of course, to even get to that point requires addressing the central oddity of the case: the notion that corporations possess religious beliefs. The Citizens United campaign finance ruling was a disgrace, but for all the uproar over the corporations-are-people-too aspect of the case, the notion of a corporate interest in political speech is well-grounded in First Amendment jurisprudence.
The for-profit corporation as religious adherent is another matter entirely. This is not what Congress had in mind in writing the Religious Freedom Restoration Act (RFRA), the law at the heart of Tuesday’s arguments.
Still, it is possible to imagine a for-profit corporation with an unquestionably religious outlook. At the argument, Justice Samuel Alito, citing a new Danish law, asked about banning kosher or halal butchers on the grounds that their practices are inhumane. I’m skeptical of the religious corporation, but I’ve got to admit: that’s one tough hypothetical.
And in the case before the court, involving family firms, the justices seemed more inclined to look beyond the corporate form. “We can talk about … how you’d apply these principles to Exxon, but I think that’s just something that’s not going to happen in the real world,” the companies’ lawyer, former Solicitor General Paul Clement, assured the justices.
But where to draw the line on corporate personhood is just one of the slippery slopes these cases pose. The other involves what religious claims to respect and how to balance competing needs.
Justice Sonia Sotomayor pressed this issue a mere 42 words into Clement’s argument: What about employers religiously opposed to vaccines? Or blood transfusions?
Clement contended that accommodating corporations on contraceptive coverage was easier because the Obama administration has already relaxed the mandate for religious institutions and religiously affiliated nonprofits. He dismissed the “parade of horribles” — that corporations would pose religious objections to complying with Social Security contributions, anti-discrimination laws, or minimum wage requirements — as entirely unlikely.
But Justice Elena Kagan predicted that under Clement’s approach, giving extreme deference to employers’ free exercise claims, “You would see religious objectors come out of the woodwork with respect to all of these laws.”
Which is where the issue of employees’ rights comes in — and why Solicitor General Donald Verrilli put so much emphasis on “the problems of inviting the kinds of claims that are predictably going to impose harms on third parties.”
Siding with the companies, suggested Justice Anthony Kennedy, who is apt to hold the deciding vote, “is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious beliefs of the employer. [Do] the religious beliefs just trump?”
In the end, Kennedy may side with the companies. “Under your view,” he told Verrilli, “a profit corporation could be forced … to pay for abortions.” Indeed, the companies contend that they are in precisely that fix, because they view intrauterine devices and emergency contraceptives as abortifacients.
And Clement offered the court an alternative: The government has relieved religiously affiliated corporations from the contraceptive mandate and put the onus on insurers. Why not offer for-profit companies with religious scruples the same escape hatch?
An easy way out of the immediate fix, but one that would create a jurisprudential and social mess in the long run. Hobby Lobby and Conestoga Wood complain only about particular forms of contraception. What happens when company after company balks at providing any contraceptive coverage? What happens when they decline to provide spousal benefits in jurisdictions that recognize same-sex marriage?
Clements’ assurances notwithstanding, the minute the court opens this door, there are going to be a lot of corporate fists waving, and a lot of bruised noses.
Marcus is a Washington Post columnist. She can be reached at firstname.lastname@example.org.