The Supreme Court's Hobby Lobby decision was an important victory for religious liberty. In a 5-4 ruling on Monday, the Court held that the Obama administration's contraceptive and abortifacient mandate as applied to "closely held" corporations, such as the family-owned craft store Hobby Lobby, violated the Religious Freedom Restoration Act. But the legal dispute over the mandate won't truly be settled until the Supreme Court takes up another case.
The unresolved question is whether or not the so-called "accommodation" afforded by the Obama administration to some religious objectors is also a violation of the Religious Freedom Restoration Act.
First a bit of background: In February of 2012, following uproar over the Obama administration's imposition of its new mandate on religious non-profits like the Little Sisters of the Poor, the administration said it would accommodate these institutions (but not for-profit corporations like Hobby Lobby). In theory, the administration would allow the non-profits to exclude coverage for drugs and services they found morally objectionable while requiring the non-profits' insurers to cover the drugs and services at no cost to their employees. This so-called accommodation was hailed in the mainstream press as a genuine compromise, but many scholars and religious leaders said it was a distinction without a difference.
More than 500 scholars and religious leaders signed an open letter that argued the "so-called 'accommodation' changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy. It is certainly no compromise." The letter continued:
It is no answer to respond that the religious employers are not “paying” for this aspect of the insurance coverage. For one thing, it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers. More importantly, abortion-drugs, sterilizations, and contraceptives are a necessary feature of the policy purchased by the religious institution or believing individual. They will only be made available to those who are insured under such policy, by virtue of the terms of the policy.
Charles Krauthammer succinctly explained at the time on Fox News that the accommodation was indeed a "a farce" and an "accounting trick."
We don't know how the Court will rule on the accommodation, but religious liberty lawyers are encouraged by the Hobby Lobby decision. Writing for the majority, Justice Alito noted that, according to the government, the accommodation was a less restrictive means of imposing the mandate. The existence of the accommodation proved that the government had failed to meet RFRA's requirement that a person's exercise of religion may be "substantially burdened" only if the law achieves a "compelling governmental interest" in the "least restrictive means of furthering that compelling governmental interest." But Alito explicitly pointed out that the Court did "not decide today whether [the accommodation] complies with RFRA for purposes of all religious claims." The family that owns Hobby Lobby did not object to the accommodation because the administration never afforded them any accommodation.
"Whether the accommodation will pass muster, I think will be the subject of a case before the Supreme Court next term," says Lori Windham of the Becket Fund for Religious Liberty, which has provided pro bono representation to both Hobby Lobby and Little Sisters of the Poor. "The language in the opinion is extremely helpful to the non-profits" challenging the accommodation, according to Windham, because the Hobby Lobby decision "rejected the government's attenuation argument."
"The government said, 'You're kind of far-removed from the sin, so we don't think you don't get to worry about this.' Of course, that's wrong," Windham told THE WEEKLY STANDARD. "That's just the government deciding it can resolve theological questions rather than the religious believers. And that's the exact same argument they're making in the non-profit cases where they're saying, 'Hey, look, we gave you this accommodation. We think that this keeps you far enough away that you shouldn't think it's sinful. You shouldn't think you're morally culpable.' And again, that's not the governmen't call to make. They need to lay off the theology and stick to governing."
Yuval Levin writes that Justice Kennedy appears in his "peculiar 4-page opinion" to be "going out of his way to say that he thinks the mandate advances a compelling government interest and that the accommodation might be the least burdensome way to advance it." But Windham says she's encouraged by Kennedy's concurrence, in which he wrote that the government cannot provide different protections for different classes of religious believers.
"RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers — burdening one while accommodating the other — when it may treat both equally by offering both of them the same accommodation,” Kennedy wrote. That logic would seem to spell trouble for the government, which has provided a full exemption for houses of worship but only the "accommodation" for religiously-affiliated charities like the Little Sisters of the Poor. (It will be especially difficult for the government to defend the accommodation in the Little Sisters case because the nuns' non-profit receives health benefits through Christian Brothers, another Catholic non-profit organization.)
And if the Court rules that non-profits like Little Sisters of the Poor and the Catholic television network EWTN may get a full exemption, Windham expects for-profit corporations like Hobby Lobby to receive the same treatment. "It's hard for me to imagine that the Court would allow different types of protection for different types of people," she said.