SCOTUS Ruling a Victory for Religious Freedom? HDS's Moore Says It's Just the Opposite

July 2, 2014
SCOTUS Ruling a Victory for Religious Freedom? HDS's Moore Says It's Just the Opposite
HDS professor Diane Moore

On June 30, the Supreme Court of the United States (SCOTUS) ruled that some corporations have religious rights and cannot be required to pay for certain types of contraceptives for their employees.

The 5-4 decision fell in favor of the closely held for-profit businesses Conestoga Wood Specialties of Pennsylvania and Hobby Lobby of Oklahoma, in which the owners have clear religious beliefs. The court ruled that the Affordable Care Act (ACA) violates the First Amendment and other federal laws protecting religious freedom because it requires coverage for contraceptives like the "morning-after pill," which the companies consider equal to abortion.

Writing for the majority, Justice Samuel Alito wrote that "The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs."

Associate Justice Ruth Bader Ginsburg wrote in her dissent that this is "a decision of startling breadth" that was "bound to have untoward effects" in areas of the law.

HDS Communications spoke with Diane Moore, Senior Lecturer on Religious Studies and Education at HDS and Senior Fellow at the Center for the Study of World Religions, about the decision and what it means for religious liberty, women's health issues, and reproductive freedom.

Harvard Divinity School (HDS): Do you feel this decision will cause other corporations to challenge laws or regulations they feel violate their religious freedoms?

Moore: Yes. In spite of Justice Alito's assertions that this is a narrow ruling, there is nothing in the principles of the decision as articulated that hinder this from setting a broad precedent. The majority opinion based their argument on three critical factors that are all significant and to some extent unprecedented. 

The first is that for-profit corporations should be treated in the same way as religious nonprofit organizations vis-a-vis the Religious Freedom Restoration Act (RFRA). The second is that there was a very low bar set for what constitutes an infringement on the owners' religious liberty. The third is that, though the court acknowledged a "compelling state interest" in requiring that access to the full range of FDA-approved contraception methods be included as part of a broader package of health care initiatives related to women's reproductive care, it asserted without specification that there was an alternative option that would be less restrictive to the religious liberties of the plaintiffs that could be employed to ensure that women have access to contraceptive services at no additional cost to themselves. Justice Alito suggested that the government could pay for such services or that the government could compel insurance companies themselves to cover the costs, as is the case with ACA exemptions for nonprofit religious organizations. 

These are all quite sweeping in their implications. Indeed, if broader interpretations don't ensue from this ruling, then the court is engaged in the problematic arena of determining which religious beliefs are more credible than others (e.g., why couldn't a Christian Science business owner decide not to support coverage for vaccinations if "a less restrictive" means of meeting the "compelling state interest" for promoting vaccinations were available, such as having the government pay as was suggested in this ruling?) 

HDS: Is the decision, as House Speaker John Boehner said, "a victory for religious freedom"?

Moore: I don't believe it is a victory and suggest that it represents the opposite. To the extent that this ruling functions to subject employees of these companies to restrictions on their liberties (e.g., access to the full range of health services legally available to others), it supports an interpretation of religious freedom that in many incidences will serve to limit the freedoms (including religious freedoms) of others.  

HDS: Josh Earnest, the White House Press Secretary, said the decision "jeopardizes the health of women employed by these companies." In your view, what is the potential impact of this decision going forward on women's health issues and reproductive rights?

Moore: There are three significant and interrelated impacts. One is to further undermine the credibility of scientific assertions that at least two (and possibly all four) of the contraceptive methods that plaintiffs oppose don't actually function in the ways that plaintiffs assert that they do.

At the center of the suit are four methods that plaintiffs charge destroy fertilized eggs or specifically hinder their capacity to attach to the uterine wall, which they interpret as akin to destroying a life and thus in conflict with their religious conviction that life begins at conception. Studies of both intrauterine devices (IUD) and the so called “morning after pill” indicate that they hinder fertilization or function in similar ways as other forms of contraception that are not singled out as problematic.

A related concern is the use of "abortion" or "abortion-like methods" as a way of describing the four forms of contraception that are targeted. This further legitimizes an ill-informed and narrowly defined anti-abortion rhetoric that masks important dimensions of the complex moral issues surrounding abortion. 

The second impact is that it will most likely hinder access for women to IUDs—one of the targeted methods in the lawsuit—that are considered one of the most effective but also expensive forms of contraception.

Finally, and more generally, it poses another barrier to women's right to reproductive freedom both conceptually and pragmatically. This right remains tenuous given the significant restrictions placed on Roe v. Wade over the past four decades and other state and local restrictions that limit information about, and access to, safe and affordable contraception.   

HDS: Writing in dissent of the decision, Associate Justice Ruth Bader Ginsburg wrote the court had "ventured into a minefield," saying it would disadvantage employees "who do not share their employer's religious beliefs." Do you feel that such employees might now be more cautious of working for a company they know to have a strong religious identity?

Moore: Yes, and employees should wonder about possible restrictions to their freedoms if they choose to work for religiously identified companies in light of this ruling.  

HDS: Is there a larger question or point that is being missed or not addressed by the media, politicians, or advocates?

Moore: I think the finer points of the ruling and dissent need more attention and are, sadly, not getting much press. I outline them above: 1) granting corporations the same status as religious groups and communities; 2) the notion that there is now a very low bar set for what is considered an infringement on religious liberty; and 3) the notion that an alternative to requiring compliance to a law that “"represents a compelling state interest" can be credible without specificity.

It is also important to note, as some commentators are doing, that the First Amendment was not invoked in this decision. It would be helpful if more attention were given to the RFRA and the controversy surrounding the Employment Division v. Smith ruling in 1990, which said that a state could deny unemployment benefits to a person who was fired for the use of a drug that was part of a religious ritual. Ginsburg's dissent helps supply some of the important background but will be confusing for people who don't know the Smith decision and why it was so controversial.

One other unrelated thought is how the Zelman v. Simmons-Harris decision on school vouchers in 2002 is related to this ruling. The court decided to support vouchers even though many were used in religiously affiliated (Catholic) schools. Opponents argued that it was a violation of the Establishment Clause because public school funds were being used to support tuition at religiously affiliated institutions.

The court ruled that parents made the decision to use the money in whatever way they saw fit and so the "third party" parent intervention made the Establishment Clause violation irrelevant. In this case, the third party is the employee or her/his dependents who choose to use the benefit of access to contraception in any way they deem appropriate. In that way, the Green family—the owners of Hobby Lobby—aren't directly supporting the services they object to. The majority didn't see it this way, of course, but I think there are some interesting parallels.

—by Jonathan Beasley