Helen Alvare, WSFT Founder, commentary after Oral Arguments on HHS Mandate

I was surprised at the amount of judicial questioning about how in the future courts would determine the contents of the conscience of a corporation. The legislative history of RFRA is quite clear about RFRA’s coverage of corporations, as is analogous law (criminal, Establishment clause law, etc.) wherein the mind of corporations is regularly determined.

I was also surprised about the persistence of the questioning from the bench about the supposed “parade of horribles” that would flow from recognizing corporate conscience. First and clearly, corporations have NOT been seeking to avoid civil rights laws on race or gender or disability on the grounds of religious free exercise. Second, should a corporation try this in the future,  the courts have regularly evaluated whether the government has a “compelling state interest” in forcing a religious actor to comply with a law. It’s the bread and butter of judicial free exercise opinions.  Clearly, asking a corporation to be race and gender blind in its employment policies is compelling, for example, while demanding that they provide insurance for drugs that are easy and cheap to get for the most part, already provided free to the poor, and sometimes cause abortions — is not. Further, corporate conscience cases aren’t going to come out of the woodwork when they haven’t done so in the past. But even should they! corporations would still have to show that they are  :

really religious as a CORPORATION

sincere in their belief

burdened in the exercise of their religion…

AND THEN the government can still WIN by demonstrating a compelling state interest.

I was encouraged by Justice Scalia’s correct understanding of RFRA (after all, it was passed in response to a case HE wrote…to change religious freedom outcomes…Scalia knows every detail of this), by some members of the Court’s understanding that there are other ways to provide contraception to women who want it, similar to the government’s health insurance subsidies, and by the Court’s seeming to understand that religious actors, NOT the government, get to determine their religious beliefs.

On the other hand, I was appalled by Justice Kagan’s suggestion that whatever “baseline” of entitlements Congress sets – requiring corporations to do X or Y as a new “right” for employees…that any deviation from this is a “loss” of benefits to employees, which might entitle the government to assert that it has a compelling state interest in giving women this benefit. There’s no end to that argument. Today it’s contraception and early abortifacients…tomorrow it’s all abortion, and the day after that it’s assisted suicide drugs for an aging population…..

Encouraged by line of questioning on halal and kosher butcher shops. It shows the slippery slope that the government’s arguments rest upon.

Solicitor General Verrelli’s (who argued for the government’s case) admission that customers might have a legal claim under the First Amendment…this makes me think, that logically, he would recognize the claims of employees to having insurance WITHOUT contraception and emergency contraception coverage. But if he’s willing to recognize their claims, then he’s willing to acknowledge that religion freedom is burdened by being forced to have an insurance policy with such coverage, even if a person chooses not to use it.

Finally, Verrelli’s statements about whether or not some IUDs or Emergency Contraceptives are abortion causing was just flat out uninformed. The government ADMITS that some of the drugs they require act on a living embryo. It’s not a matter of Hobby Lobby’s “opinion.”

Kelly Wallace, Health and Human Services Secretary

Kathleen Sebelius Tells iVillage “Historic” New Guidelines

Cover Contraception, Not Abortion , IVILLAGE (Aug. 2, 2011),

http://www.ivillage.com/kathleen-sebelius-guidelines-covercontraception-not-abortion/4-a-369771 (alteration in original)

(emphasis added).

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