I think that the Obama administration will have a hard time winning the new case going to the Supreme court on contraception mandates. Supporters of the law will focus on whether the Religious Freedom Restoration Act applies to for profit businesses. But I would point out that the court has moved towards letting for profit businesses have free speech rights under the First Amendment (see the Citizens United case from 2010). The Religious Freedom Restoration Act doesn't specifically exempt for profit businesses from coverage. It talks about "persons," but why should people lose the ability to honor their religious beliefs when they operate a company? From The Hill newspaper:
“I think there’s a strong argument that the Religious Freedom Restoration Act, in this particular case, would allow Hobby Lobby to deny certain contraception coverage without having to pay the fine that would otherwise be imposed them under the Affordable Care Act,” said Kurt Lash, a constitutional law professor at the University of Illinois.
The 1993 Religious Freedom Restoration Act prevents the government from “substantially burden[ing] a person's exercise of religion” unless it “furthers a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” Hobby Lobby, a Christian-owned chain of arts and craft stores, and Conestoga Wood Specialties Corp., a cabinet company owned by Mennonites, argue that the law should prevent them from having to offer their employees contraception as part of their health insurance coverage. The two companies are citing the 1993 law to back their cases.
Kennedy wrote the 1993 decision that allowed a Florida Santeria group that performed animal sacrifices to do so despite a local ban on the practice.
Under Roberts, the court unanimously ruled in 2006 that a Brazil-based religious sect could use an illegal hallucinogenic drug in their ceremonies, under the Religious Freedom Restoration Act.
“We already know that there is a majority on the court that not only is willing to uphold and apply [the Religious Freedom Restoration Act] but who in the past has been very skeptical of the government denying claims when they’ve been giving other groups exemptions,” Lash said. It is dangerous to predict the justices' decisions, however, and both of these cases dealt with religious institutions, not for-profit businesses. . . .
Labels: FirstAmendment, obamacare, religion