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Hobby Lobby’s Quest For Corporate Religion

Does corporate religion have any place in the office?

Is there such a thing as corporate religion? If so, who determines a for-profit company’s religious beliefs: Its shareholders? Corporate executives? And how should they weigh on employee benefit practices?

These were just a few of the challenging questions raised during the Supreme Court’s hearing of Hobby Lobby Corporation’s challenge to the Affordable Care Act’s (ACA) contraception mandate, which requires companies to provide no-cost coverage of 20 forms of FDA-approved birth control as preventative care for women. Unintended pregnancies cost the federal government about $11 billion each year, according to the Guttmacher Institute.

The Christian Green family, which owns the Hobby Lobby chain of 500 arts and crafts stores, objects to two types of contraceptives – IUDs and morning-after pills. It says these methods cause early abortion by preventing a fertilized egg from implanting in a woman’s uterus.

Nearly 50 cases have been filed over whether for-profit companies must comply with the contraception mandate if it infringes on their religious beliefs. Three federal appeals courts have struck down the mandate, while two others have upheld it, landing the issue before the Supreme Court.

Hobby Lobby, the lead plaintiff in the case, claims the mandate violates the 1993 Religious Freedom Restoration Act (RFRA), which prevents the government from imposing a “substantial burden” on a person’s exercise of religion. The arts and crafts chain could of course sidestep the mandate by not providing health insurance, and instead pay a $2000 fine per employee. During the hearing, Justice Elena Kagan suggested this option removed any such burden from Hobby Lobby’s exercise of its religious beliefs in the workplace. But the company responded that such a strategy would undermine its ability to recruit new talent.

But does the right to exercise religion apply to companies? And if for-profit corporations do have the same religious freedoms as people, as Hobby Lobby argues, can the government show that it has a compelling interest to override those rights?

For its part, the federal government argues that the courts have never afforded religious protections to for-profit corporations, and there’s no indication that Congress intended for the RFRA to do so either. But Justice Samuel Alito asked the government why for-profit corporations shouldn’t get their day in court to claim otherwise.

Overall, the court’s female justices were most skeptical about Hobby Lobby’s claim. Justice Ruth Bader Ginsburg asked what would happen if an employer objects to all 20 forms of contraception. Justice Sonia Sotomayor added a question about employers with religious objections to other medical procedures, such as blood transfusions or vaccinations. Justice Kagan predicted that a ruling in favor of Hobby Lobby would cause religious objectors to “come out of the woodwork.” She observed that if Hobby Lobby prevailed, an employer could also object to complying with sex discrimination laws, minimum wage laws, family leave laws, or child labor laws on religious grounds.

She may be right.  In February the Arizona State legislature passed a controversial bill allowing business owners with religious objections to refuse service to gay patrons. Opponents said the bill would give businesses the right to discriminate against gays and lesbians based solely on their sexual orientation. Arizona Governor Jan Brewer vetoed the bill, but Mississippi legislators just passed a similar bill in March that has a better chance of getting signed.

Justice Anthony Kennedy asked whether a religious exemption from the ACA mandate would allow companies to put their female employees in a similarly disadvantaged position. Do an employer’s religious beliefs “trump” the religious beliefs of its employees, he asked?

But Kennedy – who may be an important swing vote – also questioned whether “a for-profit corporation could be forced, in principle … to pay for abortions.”

By the same principles, then, can the people who work for such a corporation be subject to its religious beliefs? How far can those beliefs extend before they encroach on employee civil liberties? For the answer to that question, we’ll have to wait for the court’s decision in June.

Lisa Wirthman writes about business, women, & social good. She contributes to Slate, Forbes, and other publications and writes a column for the Denver Post. Follow her on Twitter @lisawirthman.

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