'Hobby Lobby' Endangers Same-Sex Benefits

Is the U.S. Supreme Court’s opinion in Burwell v. Hobby Lobby broad or narrow? Others have suggested that the court decided the case narrowly — first, by confining its holding to closely held corporations; and, second, by opining that religion-based decisions to invidiously discriminate would run into the government’s compelling interest in combating such discrimination.

Those suggestions represent wishful thinking.

The logic of the court’s inclusion of corporations as “persons” that can exercise religion cannot possibly be limited to closely held companies.

The court is right as a practical matter that publicly traded companies are extremely unlikely to make these claims, because of the difficulty of achieving agreement among shareholders on religious principles. But that is a matter of corporate structure, not law. Any business corporation may now make Religious Freedom Restoration Act (RFRA) claims.

In addition, and more significantly, the court mentioned the government’s interest in eliminating racial discrimination but said nothing about the far more likely scenario that an employer will object on religious grounds to paying spousal benefits for a same-sex spouse. (As of now, that would not violate federal law, but an Obama executive order with respect to federal contractors will soon change that.)

Counterpoint: Religious Freedom and Women’s Access to Contraceptives Preserved

What will limit the reach of Burwell v. Hobby Lobby is the pressure from Justice Anthony Kennedy’s concurring opinion, which forced Justice Samuel Alito to rest his conclusion in Hobby Lobby’s favor on the existence of alternatives that are less restrictive of religious freedom than the contraceptive mandate — in particular, the possibilities that the government would directly provide contraceptive coverage to women excluded by RFRA claims, or that the partial opt-out, available to religious nonprofits, would be extended to for-profits.

Litigation over that partial opt-out, in which insurance companies cover contraception outside of the employer’s insurance policy rather than through it, is sure to continue. Indeed, within a few hours of the Hobby Lobby decision on June 30, the U.S. Court of Appeals for the Eleventh Circuit ruled that the partial opt-out violates the RFRA. There may be five votes in the Supreme Court to reverse that judgment, or at least to distinguish for-profits from religious nonprofits with respect to the partial opt-out.

Regardless of how that is resolved, there is no comparable solution in the case of discrimination against same-sex spouses, and it is just not reasonable to argue that the government should pay for such spousal benefits. But, in light of Hobby Lobby, those spousal benefits cases are in the wings.

Ira C. Lupu is a professor emeritus at George Washington University Law School. His scholarship focuses on religious clauses of the First Amendment.

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