This post originally appeared in Moment Magazine.
In a triumph for religious liberty claims, the Supreme Court ruled Monday that for-profit companies could not be forced to pay for their employees’ contraception if doing so violated their religious beliefs.
The two companies in question–Hobby Lobby and Conestoga Wood Specialties, both owned by Christian families–had sued over a mandate in the Affordable Care Act requiring employers to pay for their employees’ birth control. In a 5-4 ruling, the Court sided with the two companies, saying that forcing them to pay would be a violation of the 1993 Religious Freedom Restoration Act (the federal statute protecting religious freedoms).
Will the Hobby Lobby case pave the way for further religious exemptions in the workplace? We asked Jonathan Rauch, a senior fellow at the Brookings Institution and the author of Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, to weigh in.
—Rachel E. Gross
Q: What does this mean for the future of religious liberties?
A: This is an important case, but more for the doors it opens than the doors it closes. It’s important to remember that this is the interpretation of the statute—the 1993 Religious Freedom Restoration Act—not the Constitution. If they had held that the Constitution requires religious exemptions for corporations, that would limit Congress’s ability to regulate companies for all time. This decision just interprets the statute, which could change. So this is going to open the discussion about what the policy should actually be, and what kind of law Congress should write about it.
The bottom line is nobody should hyperventilate about this ruling. It’s the beginning of a conversation about where to draw these lines, not the end of a conversation.
Q: Will the ruling have an impact on same-sex marriage?
A: The court said the Religious Freedom Restoration Act applies to closely held companies like family companies, which is new. I’m guessing it’s now inevitable that we’ll see lawsuits from religiously owned companies saying, “The owners of this company have a deep religious objection to paying health benefits for a same-sex spouse; that’s against our religion.” And based on this decision, that lawsuit will get traction. So I think gay marriage is going to come up very fast.
Q. In the debate between religious liberties and other Constitutional rights, are religious objectors asking for too much?
A. The Hobby Lobby case is an example of religious folks getting more assertive about religious liberties, often in ways they would not have in the past. In my recent Atlantic article “The Great Secession,” I use the example of divorce. You could perfectly well make the case that a Catholic baker should not have to cater a second marriage. The interesting thing is that no one ever thought of doing that (denying services for a second marriage). But it happens in same-sex marriage all the time.
What happened in Hobby Lobby is that a corporation defined complicity as just providing insurance that covers certain forms of contraception. And they say, “That’s a threat to our conscience.” Well that’s putting your conscience on kind of a hair-trigger. Insurance that covers this kind of contraception doesn’t mean you’re enforcing the contraception, it doesn’t mean that you’re telling anyone to get the contraception, it just means you aren’t stopping anyone from using their insurance plan to pay for it.
Q: What is the biggest danger for those who make strong religious liberty claims?
A. Religious folks are pushing the envelope really far when they say it’s a major intrusion on their religious conscience to have to buy an insurance policy that covers choices that other people make. To me that’s kind of picking a fight. And I am very sympathetic to religious liberty claims.
I agree with the dissenting opinions in the Hobby Lobby ruling, which say, “If you find your religion being burdened by something so indirect then when does it end?” If religious folks try to withdraw too much from practices of ordinary society—if they push too hard for the right not to participate—it will backfire. It sends a bad message about their inclusivity and their willingness to engage with society.