Of the two lawsuits challenging the legality of the contraceptive mandate of the Affordable Care Act (ACA) that will be argued in the Supreme Court on Tuesday, Hobby Lobby’s argument that the mandate violates the Religious Freedom Restoration Act (RFRA) has received more sustained media attention than Conestoga Wood’s claim that the mandate violates the Free Exercise Clause of the First Amendment. The mandate requires employers who provide health insurance to include preventive contraceptive services in their coverage. Depending on how the Court resolves the constitutional question, however, Conestoga could provide a more important–and dangerous—precedent than Hobby Lobby.

 

Like Hobby Lobby, Conestoga, which makes wooden cabinets in Lancaster, PA and is owned by five members of a Mennonite family (the Hahns), filed a lawsuit in federal district court arguing that the mandate violated RFRA as well as free exercise. The Hahns are morally opposed to abortion and believe some contraceptives are abortifacients. The Third Circuit Court of Appeals rejected both claims, specifically holding on the constitutional issue that a secular, for-profit corporation cannot exercise religion. The court distinguished for-profit corporations from individuals and religious organizations, who do exercise religion through prayer, worship and other activities, and rejected analogies to Citizens United, the corporate free speech case, on the grounds that free speech differs from free exercise of religion. The court also rejected a “passed through” theory under which Conestoga Wood could assert the free exercise rights of the Hahns as well as a special rule allowing family-owned business to assert the religious rights of their owners.

 

In its cert. petition appealing the Third Circuit’s ruling to the Supreme Court, Conestoga asked the court to address whether “the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights.” The government’s response to that petition phrased the question differently, asking whether “the requirement that non-exempted, non-grandfathered group health plans include coverage of contraceptives” is unconstitutional. Although the government agreed that certiorari should be granted in Hobby Lobby because of a circuit split over the meaning of RFRA, the Solicitor General told the Court there was no reason to address the First Amendment question because there was no chance Conestoga could win its constitutional case. Under Employment Division v. Smith, the Court’s leading free exercise precedent, he argued, the ACA was a neutral law of general applicability that did not target religion.

 

Nonetheless, the Court granted cert. The two different questions carried over to the parties’ briefing about the case, with Conestoga continuing to emphasize the threshold question of the family’s and corporation’s right to exercise religion and the government repeating its focus that the mandate is neutral and generally applicable. Those are two different questions, however, and serve up numerous possibilities for a free exercise decision from the Court.

 

Conestoga’s Question: Corporate Free Exercise

 

On the threshold question, the Court could uphold the Third Circuit’s ruling that nothing in history or precedent supports corporate free exercise rights, thus leaving Conestoga to win or lose under RFRA according to the decision it makes in Hobby Lobby, and leaving free exercise law as the Justices found it. This is the best free exercise option available for supporters of reproductive freedom specifically and antidiscrimination laws generally.

 

On the other hand, if the Court adopts any theory of corporate free exercise, whether for family businesses, closely-held corporations, or for-profit companies generally, the implications for civil rights are troubling in at least three ways.

 

First, expanded religious corporate rights will come at the expense of employees and customers, all individuals whose religious freedom the Bill of Rights does and should protect over institutions. Women who need contraceptive services and gays and lesbians looking for commercial wedding products will be the first victims.

 

Second, expanded corporate religious rights will favor religious businesses over their non-religious competitors, who will have to follow the laws at greater expense and burden than their exempt colleagues. Two classes of employee benefits and regulations will soon follow, with a growing temptation for all businesses to find religion so they can set their own laws and avoid government regulations.

 

Third, expanded corporate religious rights will increase the range of claims of conscience, and thus of possible exemptions, beyond any reasonable limit. Instead of individual doctors or pharmacists refusing services, for example, now companies could oppose health insurance, vaccinations, mental health care, or fertility treatments as they assert that any theological belief cannot be undermined by the government.

 

A powerful pro-government amicus brief filed by Julian Bond and the ACLU favors the government’s argument by recalling the days when slavery and Jim Crow laws were defended on religious grounds and “even the courts embraced religion to justify continued segregation.” Bond warns that the “need to prevent the misuse of religion to promote discrimination is as urgent now as ever,” and the Court’s decision will affect the status of women’s rights and the antidiscrimination laws in one way or another.

 

The Government’s Question: Neutral Laws of General Applicability

 

Possible free exercise troubles also lurk behind the Solicitor General’s argument that the mandate survives Smith. The Court could agree with the government. In a case interpreting RFRA, Chief Justice John Roberts invoked Smith for the rule that the “Constitution does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws,”—precisely what Conestoga requests. A victory for the government would be a victory for the rule of law, as Smith has protected women and children by making it possible for some victims of religious institutions to have their day in court. But a victory under Smith is not a sure thing for the government.

 

First, Smith itself. The decision contains numerous oft-quoted sentences that clearly support the government’s position, most prominently, “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Of the Justices who decided Smith, however, only the author, Justice Antonin Scalia, along with Justice Anthony Kennedy, remain on the Court. We can’t be certain how the current Justices will interpret and apply the 24-year-old precedent to the facts of the contraceptive mandate.

 

In Smith, for example, Justice Scalia also wrote, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Might Justices Scalia, Kennedy, Thomas and Alito, who memorably dissented that Congress lacked the authority to pass the ACA in the first place, again rule against the government in the context of a regulation about contraceptive insurance challenged by moral opponents of abortion? After all, four Justices (Scalia, Thomas, Roberts and Alito) are not sympathetic to abortion rights in the first place.

 

The Smith issues run even deeper. The government’s defense of the mandate also depends on Lukumi to define a “neutral” and “general” law. In Lukumi, the Court invalidated a Hialeah, Florida ordinance that targeted Santeria animal sacrifice while allowing other groups to kill animals. In contrast, the government argues, in the mandate case there was no targeting of any religion, proving a neutral and generally applicable law is in place.

 

Justice Samuel Alito may have a different perspective on that issue. As a Third Circuit judge, he wrote an opinion, Fraternal Order of Police v. Newark, that has been interpreted to undermine Smith’s holding that religious citizens must obey the law. Newark involved two Sunni Muslim police officers who sought an exemption from the department’s no-beard policy. The no-beard policy exempted officers with a medical condition that prevented shaving, which the city defended on the grounds that the medical exemption complied with the Americans With Disabilities Act. Building on Smith’s language that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason,” however, the Third Circuit ruled against the city, setting up the dangerous principle that any time the government provides a secular exemption to a law, it must provide a religious one. Once a secular exemption is in place, in other words, the government must survive strict scrutiny, which is always harder for the government to meet than Smith’s neutral and general rule.

 

Conestoga relied on this Newark argument to challenge the complex structure of the ACA with its numerous exemptions. The list is long. Because the ACA exempts certain plans that are “grandfathered” as well as small employers, members of health sharing ministries, and purely religious institutions from the mandate, and accommodates religious nonprofit (but not for-profit) corporations, Conestoga concludes, the law is not neutral and general. The government was then left to defend all those policy decisions, explaining, for example, that the government’s discretion to phase in changes slowly (as the grandfather clause does) or to exempt small employers, must be sustained.

 

The government also argues that, unlike other exemptions, Conestoga’s exemption would inflict hardship on third parties, namely the women employees, which the First Amendment does not allow.

 

The Newark strategy encourages believers to challenge any exemption that the law puts into place and immediately become exempt. The neutral and general rule of Smith would be undermined if the Court adopts such a standard.

 

Ironically, the Obama administration originally exempted only the purely religious employers from the contraceptive mandate, and then, under political pressure from religious groups, accommodated the religious nonprofits by allowing them to sign a form that passed the insurance obligation on to third-party insurers. Now the religious for-profits argue it is unconstitutional to exempt the religious nonprofits but not them.  Such is the slippery slope of exemptions. If the Court adopts such reasoning, the results could be drastic. As one amicus pointed out, religious workers constitute only 0.054% of the workforce, while the for-profit private sector employs more than 83%. The government, moreover, always needs to make classifications in determining whom the law protects. The Newark rule would subvert Smith and “in effect permit every citizen to become a law unto himself,” allowing every business owner to discriminate on the basis of his own theology.

 

The Justices’ Questions

 

On Tuesday we will find out which questions the Justices find most interesting about the First Amendment. Will they focus on whether corporations can exercise religion, or whether the mandate is a neutral law of general applicability? Will they ask about the First Amendment, or immediately turn their attention to RFRA, as commentators expect?

 

Post-argument, the Court’s answer to Conestoga’s questions must be no. The Free Exercise Clause must not be turned into a potential defense that makes it easier for every for-profit company to discriminate on the basis of gender, or any other basis.