There is a lot of confusion surrounding the Supreme Court’s recent ruling in Hobby Lobby. The libertarian perspective has been discussed elsewhere, but what the Court actually did is not being described accurately despite the fact that they helpfully include a “syllabus” summarizing each ruling for the public. Apparently, some people, including many reporters, can’t be bothered to read even the summary. Therefore in the interest of clarity, I will try to give a brief overview of the case and of the majority’s reasoning in their decision. For the sake of brevity, citations are omitted because they can be found in the actual decision.

First some background. Contrary to what some people have claimed, objections to general laws on religious grounds do excuse you from having to follow them. This wasn’t always the case. In the early 90s, the Supreme Court ruled that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest” because allowing someone to object on the basis of religion to such laws “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” In response, Congress passed the Religious Freedom Restoration Act (RFRA), overturning the Supreme Court’s decision and allowing challenges to neutral laws that burdened religious exercise. Under the RFRA, “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The people affected by such a burden are entitled to exemption from the rule unless the government “demonstrates that application of the burden to the person– (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Many people have said that the Affordable Care Act (ACA), i.e. “Obamacare”, requires employers’ group health plans to provide coverage of contraceptives. This is not correct. The ACA merely requires the plans to cover “preventive care and screenings” for women without “any cost sharing requirements.” Congress left it up to the Health Resources and Services Administration (HRSA) to decide specifically what types of care this includes. When the HRSA issued regulations specifying what was required, they mandated that all FDA approved contraceptive methods be covered. They also provided for a religious exemption for religious organizations and non-profit religious corporations. Per the requirements of the RFRA, they apparently would also provide a similar exception to unincorporated for-profit businesses operating according to the owner’s religious principles. They did not provide an exception for incorporated for-profit businesses with corporate policies stating that the businesses would be run according to religious principles. Importantly, granting this exemption does not mean that the employees of these organizations will not have contraceptive coverage. Rather, it means that the insurance companies and ultimately the government will provide this coverage at no cost to the employer or the employees.

Now for the case. …

Religious Conduct of Commerce: Unwinding the Hobby Lobby CaseRead More »