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Church-State Scholars Represented by Lowenstein Sandler: Supreme Court Grants For-Profit Corporations A Religious Exemption From Affordable Care Act’s Contraception Mandate

WASHINGTON--(BUSINESS WIRE)--The U.S. Supreme Court, in a 5-4 decision, held that two family-owned, for-profit corporations are entitled to a religious exemption from the Affordable Care Act’s contraception mandate, which would otherwise require them to provide their employees with health insurance coverage for all FDA-approved contraceptives. By granting this exemption, the Court effectively imposes on employees the costs of accommodating their employers’ religious objections to contraception.

“The silver lining is that the Court’s opinion assumes that contraceptive coverage for the corporations’ female employees and their dependents can be provided by the government or in another way at little additional cost, which would alleviate the third-party burden”

The owners of Hobby Lobby (a chain of crafts stores) and Conestoga Woods (a cabinet maker) objected on religious grounds to covering particular forms of contraception in their health insurance plans. The Court held that the federal Religious Freedom Restoration Act (RFRA) entitles them to decline to include the coverage that offends them. As a result, female employees of the corporations, and female dependents of employees, may incur additional health care costs and risks to accommodate the religious beliefs of their employers.

Frederick Mark Gedicks filed a friend-of-the-court brief for himself and twenty other church-state scholars arguing that such burden-shifting violates the Establishment Clause. “We are disappointed in today’s decision, which disregards constitutional principles that prohibit the government from shifting the costs of the exercise of a religion from those who believe and practice it to those who don’t,” said Gedicks.

Today’s decision applies only to closely held corporations, holding that they are entitled to religious accommodations under RFRA. Nevertheless, as Justice Ginsberg writes in dissent, the opinion has “startling breadth,” giving commercial enterprises a federal right to opt out of laws they consider incompatible with their religious beliefs.

To avoid the untenable result that the corporations’ employees and their dependents would bear the brunt of accommodating their employers’ religious beliefs, the majority suggests that the government should pick up the tab for contraceptive coverage or that, as with religious nonprofits, their health insurers should cover the costs. “The silver lining is that the Court’s opinion assumes that contraceptive coverage for the corporations’ female employees and their dependents can be provided by the government or in another way at little additional cost, which would alleviate the third-party burden,” said Gedicks, “but this remains a troubling decision. The majority failed to take clear account of the Establishment Clause principle that prevents the government from making religious accommodations for some at the expense of others. The Court should have read RFRA in light of this overriding constitutional principle.”

The Lowenstein Center for the Public Interest at Lowenstein Sandler represented the church-state scholars on a pro bono basis. The law professors who joined the friend-of-the-court brief include: Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School; Vincent Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School; Caitlin Borgmann, Professor of Law, CUNY School of Law; Caroline Mala Corbin, Professor of Law, University of Miami School of Law; Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law and Professor of History, University of Pennsylvania Law School; Steven K. Green, Fred H. Paulus Professor of Law, Director of the Center for Religion, Law & Democracy, Willamette University College of Law; Leslie C. Griffin, William S. Boyd Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas; B. Jessie Hill, Associate Dean for Faculty Development and Research, Professor of Law and Laura B. Chisolm Distinguished Research Scholar, Case Western Reserve University School of Law; Andrew M. Koppelman, John Paul Stevens Professor of Law and Professor of Political Science, Northwestern University; Martha C. Nussbaum, Ernst Freund Distinguished Service Professor of Law and Ethics, Law School and Department of Philosophy, The University of Chicago; Eduardo Peñalver, John P. Wilson Professor of Law, The University of Chicago; Michael J. Perry, Robert W. Woodruff Professor of Law, Emory University School of Law; Frank S. Ravitch, Professor of Law & Walter H. Stowers Chair of Law and Religion, Michigan State University College of Law; Zoë Robinson, Associate Professor of Law, DePaul University College of Law; Lawrence Sager, Alice Jane Drysdale Sheffield Regents Chair, University of Texas at Austin School of Law; Richard Schragger, Perre Bowen Professor of Law, Barron F. Black Research Professor of Law, University of Virginia School of Law; Micah Schwartzman, Edward F. Howrey Professor of Law, University of Virginia School of Law; Elizabeth Sepper, Associate Professor of Law, Washington University School of Law; Steven H. Shiffrin, Charles Frank Reavis, Sr., Professor of Law Emeritus, Cornell University Law School; Nelson Tebbe, Professor of Law, Brooklyn Law School; and Laura Underkuffler, Associate Dean for Academic Affairs and J. DuPratt White Professor of Law, Cornell University Law School.

Contacts

Lowenstein Sandler LLP
Catherine Weiss, 973-597-2438
cweiss@lowenstein.com
or
Frederick Mark Gedicks, 801-319-0880
gedicksf@law.byu.edu