Complicity and Contraception: Rethinking Hobby Lobby’s Claim of ‘Substantial Burden on the Exercise of Religion’
Within the next month, the United States Supreme Court will decide whether for-profit corporations shall receive an exemption from providing certain types of contraceptives that are otherwise mandated for healthcare coverage by federal law to employees on the basis of the religious objections of the corporations’ owners. The two cases considered in tandem by the Supreme Court, Sebelius v Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corporation v Sebelius (Hobby Lobby from here on out), feature a Christian-owned arts and crafts chain and a Mennonite Christian-owned furniture manufacturer, the owners of which object to four specific forms of birth control that they claim cause abortions.
In making their argument for an exemption, the claimants rely mainly on the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993. The RFRA states, “Government shall not substantially burden a person’s exercise of religion…” unless “that application of the burden to the person – 1) is furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest.” This sets up three tests for judging the permissibility of a government act: the substantial burden test, the compelling interest test, and the least restrictive means test. For the claimants in Hobby Lobby to be successful under the RFRA, the Supreme Court would need to decide first that the government’s ‘contraception mandate’ is indeed a ‘substantial burden’ and second that the provision of contraception is both a compelling government interest and that employer based health insurance is the least restrictive method for securing that interest.
Scholars and journalists have taken various approaches in responding to the range of questions related to these three tests. However, I argue here that Hobby Lobby’s exemption claim can be denied without diving into this spectrum by showing that it fails to meet the first test: the government does not place a substantial burden on the exercise of religion by Hobby Lobby and Conestoga Wood in its ‘contraception mandate.’ Continue reading