By Laura Anne
On Tuesday, March 25 the Supreme Court heard consolidated oral arguments in a pair of cases, previously blogged about here, in which privately-owned for-profit corporations seek a religious exemption to the so-called “contraceptive mandate” of the Affordable Care Act.
During the argument by the government’s solicitor general, the justices seemed particularly focused on the issue of whether there is “something about engaging in a for-profit activity that is inconsistent with a free exercise claim.”[1] Though he recognized that the Court has never before considered “a for-profit corporation as exercising religion,”[2] Justice Alito seemed troubled by and repeatedly questioned General Verrilli on “the implications of saying that no for-profit corporation can raise any sort of free exercise claim at all.”[3] General Verrilli responded by invoking the Court’s holding in United States v. Lee,[4] countering that “once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for-profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere.”[5] Justice Scalia, however, noted that “[t]here is not a single case which says that a for-profit enterprise cannot make a freedom of religion claim . . . .”[6]
During the argument on behalf of the private parties, meanwhile, Justice Sotomayor seemed concerned with the “slippery slope” of religious exemptions that might follow if an exemption were granted here, such as exemptions for vaccines, blood transfusions, non-pork products, etc.[7] The parties’ attorney responded that each case would have to be examined on its own by conducting the substantial burden, compelling interest, and least-restrictive alternative analyses which are integral to free exercise and RFRA[8] claims, and suggested that other claims might not qualify for an exemption—for example, in the case of vaccinations, the government might have a stronger compelling interest than in the present case.[9]
An opinion is expected this summer. The full transcript of the argument can be found here »
Laura Anne is a Law & Bioscience fellow with the Center and is a member of the Class of 2014.
[1] Transcript of Oral Argument at 46, Sebelius v. Hobby Lobby Stores, Inc., CITE & Conestoga Wood Specialties Corp. v. Sebelius, CITE (Nos. 13-354, 13-356).
[2] Id. at 21.
[3] Id. at 78.
[4] 455 U.S. 252 (1982). In Lee, the Court upheld the denial of a religious exemption to an Amish employer and his employees, who all sustained a sincere religious objection to the payment of Social Security taxes.
[5] Id. at 81.
[6] Id. at 50–51.
[7] Id. at 4, 84.
[8] The Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq. (2013).
[9] Transcript of Oral Argument, supra note 1, at 5–6.