Not a Passing Hobby
The U.S. Supreme Court will hear oral arguments March 25 on two prominent cases that could have far-reaching effects on Jewish-owned businesses and their employees. Both challenge the legality of an Affordable Care Act mandate requiring firms with more than 50 employees to provide contraception coverage as part of their insurance policies.
Jewish organizations have staked out positions on either side of the issue, filing amicus briefs in what has become the Hobby Lobby case and a similar suit invoking religious freedom protections on the one hand and reproductive rights on the other.
A national chain of arts-and-crafts stores operating as a closely held corporation by the Green family, Hobby Lobby was founded by the family’s patriarch, David Green, a devout Christian, in the 1970s. He and his children, who claim to run it in adherence tobiblical principles, are challenging the U.S. Health and Human Services Department and its secretary, Kathleen Sebelius, for what they see as the new health law’s undue burden on religious businesses. The case mirrors elements of Conestoga Wood Specialties Corp. v. Sebelius, which deals with a Mennonite-owned wood cabinet manufacturer in Pennsylvania. The court linked the cases; attorneys will argue both simultaneously on Tuesday.
Hobby Lobby’s owners’ “sincere religious beliefs prohibit them from covering four out of 20 FDA-approved contraceptives in their self-funded health plan,” the retailers’ attorneys wrote in their brief to the court.
The Affordable Care Act, however, prescribes financial penalties for violators of the law, which Hobby Lobby maintains is a violation of its owners’ rights under the free exercise clause of the First Amendment of the Constitution in the Religious Freedom Restoration Act of 1993. That law forbids the government to establish laws that “substantially burden a person’s exercise of religion” unless a compelling government interest is served and the law represents the “least restrictive means” of doing so.
So far, HHS has granted exceptions to the contraception mandate to nonprofit organizations such as religious charities, which Hobby Lobby and its supporters are quick to invoke as proof that alternatives exist to achieving the goal of universal contraceptive coverage for religion.
In response, HHS — backed by friend-of-the-court briefs by the Jewish Social Policy Action Network and the American Jewish Committee — claims that a for-profit corporation such as Hobby Lobby, whose business of selling arts and crafts is not a religious undertaking, should not be granted an exception, as the values are not necessarily those of its approximately 13,000 employees.
“I actually think that this is a situation where religious free exercise rights are better protected by not allowing Hobby Lobby and Conestoga to do what they want,” said attorney Hope Freiwald, partner at Dechert LLP and author of the brief on behalf of JSPAN, a Philadelphia-based organization that calls itself the “progressive voice” of the Jewish community. “In this context, the corporations have positioned themselves as holding the mantle of religious free exercise, but I would argue that if you think about the importance of protecting the rights of religious minorities, if you think about the importance of protecting the interest of peoples whose practice of their faith may not conform to what is accepted at major institutions in this country, you’re much better off with the government’s view.”
Freiwald drew a comparison to recent actions in Arizona, where companies were invoking a state law similar to the federal Religious Freedom Res-toration Act to claim that “they could refuse to do business with homosexuals if it offended their religious free exercise.” Corporations already are forbidden to discriminate in hiring and promoting based on gender and religious beliefs, he pointed out, so they’re already used to certain governmental restrictions.
“The Jewish community knows about discrimination; it knows about the challenges of being a minority religious voice,” said Freiwald. “The best way to protect free exercise is to make sure that you’re protecting individual rights rather than corporate rights.”
In its filing, the AJC asserted that there was no feasible alternative to ensuring that women receive access to contraceptive coverage if companies decide not to provide it through employer-sponsored health plans.
“The hard question is, as it should be, whether the government has a compelling need to override your religion,” said AJC counsel Marc Stern. “We think [that] in the equality of women and protecting their ability to make choices, there isn’t any other way to make sure that most women have access to whatever form of contraception they either need or choose to use other than this.”
The perspective of many in the Orthodox Jewish community in these cases is reflected in a brief filed by the Jewish Commission on Law and Public Affairs by famed Orthodox attorney Nathan Lewin of Lewin & Lewin LLP. His brief is joined by seven Orthodox organizations: Agudas Harabbanim, Agudath Israel of America, the National Council of Young Israel, the Rabbinical Alliance of America, Rabbinical Council of America, Torah Umesorah and the Union of Orthodox Jewish Congregations of America.
In an interview, Lewin called the brief original in its intent to bring a strictly Orthodox perspective on the issue as opposed to interpreting precedent.
“Basically, I’m challenging the government’s theory that there should be a distinction between whether you run a business individually and whether you run it as a corporation,” said Lewin. “I want the Supreme Court to appreciate that there are religious observances, like Orthodox Jewish religious observances, that make no difference in terms of the burden on the person who is engaged … whether it’s through a corporation or not through a corporation.”
An example Lewin pointed to is Judaism’s prohibition on working on the Sabbath. That prohibition extends to non-Jewish workers in the employ of a Jew; Judaism makes no distinction, Lewin argued, between a Jewish employer and a Jewish-owned business. Through that lens, the government distinction between for-profit and nonprofit corporations would fall apart.
“There have been very, very, few briefs in the Supreme Court that have cited Jewish halachic authorities,” said Lewin.
Both sides said the case will be a close decision. As in similar controversial issues, they believe that when the court hands down its decision at the end of the term in June, the outcome will likely be 5 to 4.
Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute and editor of the Cato Supreme Court Review, said that the law should not hold corporations and individuals to different standards.
“The basic idea is that individuals don’t lose their rights when they engage in social activity, when they associate in groups or when they incorporate their business,” explained Shapiro, who also filed an amicus brief in the cases. “So in the case of Hobby Lobby, where religious business owners try to conduct their business in accordance with their faith, they shouldn’t be forced by the government to pay for certain procedures or medicines with which they have a religious disagreement.”