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'Clashes of Church and State' Endure in Contraceptive Coverage Cases, NYT's Greenhouse Writes

'Clashes of Church and State' Endure in Contraceptive Coverage Cases, NYT's Greenhouse Writes

March 6, 2014 — Hobby Lobby's legal challenge to the federal contraceptive coverage rules and a vetoed Arizona bill that would have protected businesses that ignore nondiscrimination laws for religious reasons "are analytically distinct, but they inevitably converge on the question of when religion is permitted to trump a generally applicable law," New York Times op-ed contributor Linda Greenhouse writes.

The issue "is not new territory for the Supreme Court," which is scheduled to hear Hobby Lobby's case on March 25, notes Greenhouse, a former Times Supreme Court correspondent who now teaches at Yale Law School. After the high court's 1990 ruling against "two American Indians who lost their jobs for using an illegal substance, peyote, in a religious ceremony," Congress passed the Religious Freedom Restoration Act (PL 103-141), which provides that "a 'substantial burden' on religious exercise had to be justified as serving a 'compelling governmental interest' by the 'least restrictive means' available," she explains.

However, the Supreme Court in City of Boerne v. Flores ruled that the "Congress lacked the constitutional authority to impose this structure on the states," although the law "remained in effect as applied to the federal government" and is "the statutory basis for Hobby Lobby's challenge to the contraception mandate," Greenhouse writes.

Legal Standards in Contraceptive Coverage Case

In the Hobby Lobby case, the court will first have to determine whether RFRA applies to a "for-profit company," and, if so, whether "insurance coverage that simply enables individuals to make private decisions about which medical products to obtain can be a substantial burden on the corporation's exercise of religion." She continues, "If the justices do find the contraception mandate to be a substantial burden, they will then move on to the questions of 'compelling interest' and narrow tailoring."

Greenhouse argues that the "answer to the substantial burden question -- that there isn't one -- seems to [her] so obvious that [she] can't imagine it would have occurred to anyone to make a substantial-burden claim in the absence of the context that led Hobby Lobby's owners to discover to their shock that they had been covering" the very contraceptives they now object to right up until "compliance with the Affordable Care Act's [PL 111-148] contraception mandate became a hot political issue."

Although Hobby Lobby's case and other "accumulating disputes about church and state just represent old debates in contemporary guises, ... the corporate identity of these claimants to religious protection adds a new and troubling dimension at a time when the Supreme Court seems intent on enhancing corporate power," Greenhouse argues (Greenhouse, New York Times, 3/5).