The contraceptive mandate case coming before the U.S. Supreme Court on March 25 concerns contraceptives, but the court is considering for the first time a broader question: Do for-profit corporations have religious freedom protections under the Religious Freedom Restoration Act (RFRA)? With that question in mind, businesses, municipalities, and nonprofits have filed hundreds of pages of arguments in the case, 82 briefs in all. The breadth of the briefs underscores the significance of the case, brought by Hobby Lobby and Conestoga Wood Specialties, both businesses with Christian owners who object to being forced to provide contraceptive and abortifacient drugs under Obamacare.
The companies challenged the mandate separately but the Supreme Court will hear their cases together. Both Hobby Lobby and Conestoga cover certain contraceptives under their employee health insurance plans, but object on religious grounds to covering the required abortifacients. Hobby Lobby has evangelical owners, while Conestoga’s owners are Mennonite.
The amicus briefs reveal the diverse groups watching this case—not just religious business owners and nonprofits, but also gay rights groups, who see the potential expansion of religious freedom as a threat to gay rights. Some religiously owned businesses who haven’t sued the federal government over the mandate, like Drury Inns, nevertheless filed on the side of Hobby Lobby and registered their objection to the mandate.
Many of the amicus briefs weren’t surprising. Democratic-led states filed on the side of the government, Republican-led states filed on the side of Hobby Lobby and Conestoga. Liberal religious scholars filed on the side of the government. Conservative religious scholars filed on the side of Hobby Lobby. Liberal Jewish groups filed on the side of the government, conservative Jewish groups filed on the side of Hobby Lobby.
But Hobby Lobby and Conestoga gained some unconventional allies, from international law schools to the International Society for Krishna Consciousness to former Democratic Rep. Bart Stupak, whose vote was key to Obamacare’s passage. Stupak had led a group of pro-life Democrats to block the bill, but agreed to support it after President Barack Obama issued an executive order against federal funding for abortion. Pro-life groups ridiculed Stupak’s decision to support the healthcare law, saying he was naive to think that the federal government wouldn’t end up covering abortions under the law. Stupak did not run for reelection after the controversy.
Stupak filed his brief in the case with the Democrats for Life of America, which also supported the Affordable Care Act. They argued the mandate tramples on business owners’ conscience rights.
The brief from a number of international law schools and international law scholars argued that “foreign courts and legislation protect for-profit corporate entities’ exercise of religion.”
Filing on the federal government’s side was a coalition of municipal government groups, including the U.S. Conference of Mayors, even though they have nothing to do with contraceptive coverage enforcement. They supported the federal government on the grounds that if the Supreme Court defines for-profit corporations as “persons” under RFRA, it could have implications for municipal land use laws.
Another brief on the side of the government from “religious organizations” included several gay rights groups.
“DignityUSA is concerned that LGBT people could be denied equal access to healthcare services if employers are allowed to restrict health coverage on the basis of the religious belief of the owners,” its brief read. The Global Justice Institute, a gay rights group, also joined the brief, along with New Ways Ministry, a group that “promotes the full equality of LGBT people in church and society.”
The American Civil Liberties Union brief made a similar “equal access” argument in a brief that was perhaps the most acerbic toward the religious business owners, lumping them together with those who opposed civil rights. Its brief argued that Hobby Lobby and Conestoga were part of a historical trend of people discriminating under the pretense of religion.
“Slavery was once defended on religious grounds,” the ACLU wrote. “So were Jim Crow laws. Even the courts embraced religion to justify continued segregation.”
The mandate “addresses a vestige of discrimination,” the ACLU claimed.
“The implication is that we should never give legal protections to religious objectors, because religion is always used to promote bad things,” said Jordan Lorence, an attorney with Alliance Defending Freedom, which represents Conestoga, after reading the ACLU’s brief. “But what of the federal law that exempts pacifists from the military draft? Is that wrong or unconstitutional to exempt them? If the ACLU thinks there are ‘good’ religious exemptions, and the one here is a ‘bad’ religious exemption, how do we tell? That is exactly what RFRA tries to do with its legal test.” Lorence, who wrote Conestoga’s brief, is referring to RFRA’s directive that a law which burdens religious exercise must use the “least restrictive means” of accomplishing its goal, and be “generally applicable” or apply broadly to the public. Hobby Lobby and Conestoga don’t think the mandate passes the test, especially because so many constituencies got exceptions to the healthcare law’s mandates.
Amicus briefs can play a significant role in a Supreme Court case. The justices sometimes quote from them during arguments and in their decisions. The court likely won’t issue a decision in this case until June.