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Obamacare Heads for the Supreme Court — Again

Do corporations have religious rights?

A flock of companies — 84 says the Wall Street Journal — have sued the government arguing that for religious reasons they should not be required by the Affordable Care Act to provide insurance to their employees that includes Sotomayor Issues Decree: Jan 1: The stay issued by the Supreme Court justice on New Year's Eve that temporarily relieved Catholic groups from having to provide insurance that pays for contraceptive aids shows where this case is headed. The White House has asked the Supreme Court to override this peremptory exemption from health care the law in a case yet to be decided.

coverage for contraceptives. The Supreme Court has agreed to hear a pair of such cases combined into one.

If the Court — six of whom are Catholic — decides in favor of these complaints, they will be effectively expanding on their ruling in Citizens United that corporations are “persons” and should have many of the same rights as their human counterparts. If the Court decides that corporations can have religious beliefs, it will have descended into idiocy.

The owners of both corporations in the combined case — Hobby Lobby, a chain of arts-and-crafts stores based in Oklahoma City, and Conestoga Wood Specialties, a Pennsylvania manufacturer of kitchen cabinet doors — are highly religious and offended that they should have to violate their religious principles by offering such insurance. They are of course free not to use the contraceptives themselves, and even free to proselytize their employees not to, but instead they believe they should have the right to impose their religious rules on their employees’ lives and deprive them — 15,000 of them in the case of Hobby Lobby — of this benefit. A Wall Street Journal calls this paternalism “the free exercise of religion”.

By executive fiat, and irrespective of what the law says, the Obama administration has already wrongly waived the requirement that religiously affiliated organizations such as Catholic hospitals provide such insurance, without regard to the unequal treatment of their multi-faith employees compared to those in other corporations. The White House drew the line only at commercial businesses.

But while religious sensibilities are the plaintiffs’ objection, that is evidently a weak argument to take to court. Lawyers took a different tack — that corporations can be religious.

Denver’s 10th U.S. Circuit Court of Appeals showed how far a law can be twisted to arrive at a desired outcome by basing its ruling on the Religious Freedom Restoration Act of 1993. That Act reversed a high court’s permitting an Oregon company to deny benefits to an employee for using peyote as part of a religious rite. The Act says “the government shall not substantially burden a person’s exercise of religion”, so the employee was free to partake. The 10th ruled in favor of Hobby Lobby that the Obama government was burdening that “person”’s exercise of religion, thus treating a corporation as a person and ascribing to it religious convictions.

The 7th U.S. Circuit Court of Appeals in Chicago ruled the same, that the government was imposing a “substantial burden” on a living, breathing corporate “person”.

In the Conestoga case the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled the opposite. It said "secular, for-profit corporations cannot engage in religious exercise." Bad enough that Citizens United decided that a corporation is a person and should enjoy the First Amendment's privilege of free speech, but that does not automatically give a corporation the right to claim it is free to exercise a religious belief based on the other provision of that amendment.

A Cincinnati appeals court sided with the 3rd.

Choosing sides

In their campaign to overturn Obamacare by any means, Republicans took the side of those who objected to insurance with contraceptive coverage when this subject became a major flap several months back. On now hearing that the Supreme Court is stepping in, House Speaker John Boehner said, "The administration's mandate is an attack on religious freedom, and I'm hopeful it will be reversed by the court".

Whether or not the Obamacare should pay for anyone’s contraceptives is a separate argument. It is certainly a valid question whether health insurance should pay for matters not strictly related to health. But given that contraceptives are covered by the law’s insurance packages, arguing for corporate freedom to deny coverage makes for a curious contradiction for Republicans. There isn’t much of a libertarian streak in coming down on the side of a company’s restricting employees’ rights under a law to be provided with contraceptives against unwanted pregnancy. It gives the White House, in the person of Press Secretary Jay Carney, the opening to say, “The president believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women.”

The First Amendment begins with "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". It is difficult to see how the Supreme Court could approve of a corporation effectively establishing its religion on the heads of thousands of employees if not even Congress is allowed to do so. So the concern is that they will probably fasten on the second clause and declare that these corporate "persons" are just freely exercising their own religious beliefs, never mind the thousands affected. The Court will probably hear the case in March with a ruling to follow in June.

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