One of only two undecided cases left on the United States Supreme Court docket this year is Burwell v. Hobby Lobby, No. 13-354. The case has been anticipated since the Affordable Care Act ("ACA") became law in 2010 and watched extremely closely as it made its way from a retail outlet in Oklahoma City all the way to the Supreme Court of the United States of America. The company that runs the stores, Hobby Lobby, and its owners, who describe themselves as devoted Christians, argue that the ACA requires them to provide their employees with health insurance covering methods of contraception to which they object on religious grounds. Hobby Lobby contends that the birth control methods at issue, while not including abortion itself, nevertheless amount to the same thing in practice. Resp. Br. at 10. Therefore they demand to be exempted from the mandate.
In 1973, in Roe v. Wade, the US Supreme Court took a Texas felony -- abortion -- and made it into a constitutional right. The country has not stopped fighting about it since, and once again, at the core of the Court's most controversial decision of the year, we meet the issue of abortion. While different Biblical passages have been cited in respect to the prohibition on abortion, among the most common are Psalm 51:5 ("Surely I was sinful at birth, sinful from the time my mother conceived me") and Jeremiah 1:5 ("Before I formed you in the womb I knew you, before you were born I set you apart"). Many Catholics share the views of Hobby Lobby's owners, on the issue, and the University of Notre Dame fights the ACA mandate alongside other Christians. The perennial power of abortion to dominate the decisions of our highest court, year after year, illustrates how little even Supreme Court decisions have done to settle the conflict in American religion and culture over abortion. In fact, this will be the second abortion case in as many weeks, as the Court decided issues related to clinic protests in McCullen v. Coakley last week.
The government of the United States itself is a the other party to this year's biggest case, and it takes the position that, first of all, only Hobby Lobby, and not its owners are subject to the ACA mandate. The government argues that corporations don't have religions or religious rights. Accordingly, the religious convictions of the owners, no matter how sincere, are simply beside the point. Pet. Reply at 6-7. The government argues further that even if Hobby Lobby has religion and religious rights acquired through its owners, for-profit businesses cannot claim exemption from generally applicable laws. The interests of Hobby Lobby's 13,000 employees, many of whom do not share the owners religious views, are also invoked to support its position that Hobby Lobby is required to follow the law like everyone else, regardless of what its owners believe. Mark 12:17 ("And Jesus answering said unto them, Render to Caesar the things that are Caesar's, and to God the things that are God's. And they marveled at him.").
Both sides rely on their respective interpretations of a law called the "Religious Freedom Restoration Act" -- a law passed by Congress before the ACA passed, stating that government entities in the United States shall not substantially burden a person's exercise of religion, unless that burden is the least-restrictive means of furthering a compelling governmental interest. Hobby Lobby interprets the requirement to provide insurance that includes certain birth control methods as a "substantial burden" on its exercise of its owners' Christian faith. The government indicates that Hobby Lobby itself has no religion, but even if it did, the interest in providing comprehensive health insurance to 13,000 employees of Hobby Lobby is a "compelling" one.
Other considerations come into play. Contraception and abortion are well-travelled ground in the federal courts and have been the subject of near-continuous national controversy since the 1960 and 70s. On the other hand, in a religiously pluralistic society, virtually any aspect of the employer-employee relationship could be subject to challenge on some religious grounds, including regulation of working hours, minimum wages, or non-discrimination rules. The government points out that the Bible is read by some to prohibit the hiring of an unmarried woman without her father's consent. Pet. Reply at 21-22. Other religions object to immunization, setting up a situation where children's inoculation against disease would not be covered, depending on where mom or dad worked.
Hobby Lobby reacted to these arguments about the way one would expect, by asserting in no uncertain terms that their faith would not permit them to pay for insurance coverage that could cover abortion and that they are entitled to insist on this right, as it is guaranteed to them by RFRA, if not the First Amendment itself. Opposition to abortion is a cornerstone of their faith as they see it, and facilitating it in any way, shape, or form seems to them an abuse of their rights as Americans. The fact that this might not be the only way in which modern government imposes on religious exercise means something quite different to them than it does to the government.
So What will be Caeser's, and What will be God's?
As with many US Supreme Court cases, this one is a proxy for conflicts that exist within our culture. Those who support the ACA against the many religious challenges that have been made come from a section of America that would like to see less scope for religious belief in public life. This section would like to see religion practiced privately if at all, and certainly not made the basis for decisions about how the country will be governed. These folks feel that whatever the religious views of Hobby Lobby may be, they don't prevent the United States from maintaining a secular system of health insurance and health care to which we are all equally subject.
Conversely, those opposing the ACA on religious grounds are likely none-too-supportive of the ACA, with or without its contraception mandate. This section of the culture has made it pretty clear it sees the ACA as over-reaching intrusion by the federal government into our most intimate and personal beliefs. The idea that the government simply has no business defining all the aspects of private relationships, including employer-employee, also looms large for the Hobby Lobby side of this debate.
The oral argument in the case foreshadowed a 5-4 split in the Court, with the Eternal-Justice-of-the-Spotless-Five, Kennedy, squarely in the middle. The result he will reach is anyone's guess (I'm calling this one for Hobby Lobby -- if I'm wrong, you get your money back). But we can safely predict that tomorrow, the US Supreme Court will decide this case, as it has countless other conflicts in the culture war, and that regardless of what it decides, a lot of people are going to be unhappy about it. The nation's most powerful court has never seemed to have any power to change anyone's mind about abortion.
However, if one religious challenge to the ACA succeeds, many more will come and the foes of the law will think it can be killed with a thousand cuts. On the other hand, if this challenge fails, the potential for government to run roughshod over religious beliefs, taking ever less account of the views of the faithful, a loss of faith in our common institutions could be the result. A basic question the Court may not answer explicitly is this: Can a universal health insurance mandate be harmonized with strong protection for religious freedom?
You can find (unbelievably comprehensive) coverage of the case on SCOTUSBlog here. When the decision is released Monday, we will be here with the opinion(s) and analysis for you.