Examining the Hobby Lobby decision

“For the first time in our legal history,” said Matthew Melone, “the Supreme Court has decided that a corporation has religious free exercise.”

Melone, a professor of law in Lehigh’s College of Business and Economics, voiced his opinion in a panel discussion titled “Corporations and Religious Freedom: Hobby Lobby Decision and Its Impact” on Tuesday, September 23 in the Rauch Business Center.

The discussion focused on the United States Supreme Court’s June 30 decision in Burwell vs. Hobby Lobby Stores, Inc., which found that the federal government cannot compel closely held corporations to provide contraception coverage otherwise required under the Patient Protection and Affordable Care Act (ACA) if providing that coverage violates the religious beliefs of their shareholders.

Panelists Dena Davis, Presidential Endowed Chair in Health and professor of bioethics in the department of religion studies, and Laura Katz Olson, professor of political science, joined Melone in the discussion.

According to the Internal Revenue Service, a corporation is defined as closely held when five or fewer individuals directly or indirectly own more than 50 percent of the value of the corporation’s outstanding stock at any time during the last half of the tax year.

At issue in the Hobby Lobby case was the Religious Freedom Restoration Act (RFRA) of 1993. RFRA states that the federal government can impose no substantial burden on religious free exercise unless the government has a compelling interest in providing that burden. The government must also use the least restrictive means in achieving its objective.  

Under the ACA, the Department of Health and Human Services issued regulations requiring the provision of 20 different forms of contraception as part of preventive care for women. Two closely held corporations, Hobby Lobby Stores of Oklahoma and Conestoga Wood Specialties of Pennsylvania, objected to four and two of the required contraceptives, respectively. They argued that those contraceptives were abortifacients and that providing them would violate the religious beliefs of their shareholders.

The Court ruled in favor of the corporations in a narrow 5-4 decision limited to closely held corporations.

Olson fears that the decision could become less narrow.

“Since 1944… no court has ever entitled a for-profit company an exemption for generally applicable laws such as the ACA because it would place a burden on the religious exercise of its employers or owners,” said Olson, who listed potential objections from a range of religious groups. “To what extent could this ruling go?”

Melone expressed concern with the Court’s suggestion that the federal government fund the provision of the contraceptives in question as the least restrictive means.

“It’s a pretty radical view from a Court who is very big in separation of powers to start dictating what government programs should be run,” said Melone. “I think that really raises some separation of power issues.”

After Davis examined the question of a corporation’s religious identity by describing societal praise for good works performed by corporations in the name of religion, Olson argued that the act of incorporation contradicts the claim of religious identity.

“Should the Greens [the owners of Hobby Lobby] have their cake and eat it too when they take advantage of incorporation?” asked Olson. “Should they be granted all the legal immunities but also have their personal religious beliefs intermingled with the company?”

Melone believes the Court should have clarified what it means to exercise religion. “They should have subjected to scrutiny the notion that something is a substantial burden if there is a burden on exercise,” he said. “The provision of health insurance does not implicate the exercise of religion. What it is, is a burden on the conscience. I don’t think RFRA or the First Amendment should provide us a guarantee to a free conscience.”

Davis stressed the need for respect of beliefs as well as adherence to the law.

“I would rather under the circumstances say, ‘Of course conscience and religion are completely inseparable in every way, but—sorry—we’re going to burden your conscience here,” she said. “But at least we’re going to respect the fact that by burdening your conscience we’re burdening your religion, and we’re doing it because some of the values [that we hold in this country] are more important.’”

The panel discussion was sponsored by the College of Business and Economics and the College of Arts and Sciences.

Photo by Sarah Barnett

Story by Kelly Hochbein