The court, which hears oral argument in two consolidated cases on
March 25, could rule that individuals who own closely held
companies, rather than the corporations themselves, can argue their
religious rights have been violated. Such a ruling would allow the
court to avoid criticism that it favors corporate rights too much.
The latest challenge to part of President Barack Obama's 2010
healthcare overhaul is one of the most closely watched cases before
the nine justices this year, mixing religion, women's rights and
The cases were brought by owners of companies that want an exemption
from the so-called "contraception mandate" provision. A ruling is
expected by the end of June.
The justices will weigh whether the companies or their owners have a
claim under a 1993 federal law called the Religious Freedom
Restoration Act (RFRA) and the First Amendment to the U.S.
Constitution, which ensures the free exercise of religion. Religious
institutions are exempt from the regulation.
One option for the justices is to adopt the approach a federal
appeals court in Washington took in one of dozens of cases being
litigated around the country and rule owners have a right to object,
ignoring the question of whether companies can.
"It does kind of give a middle way to duck the legally controversial
question," said Francis Manion, a lawyer for Roman Catholic brothers
Francis and Philip Gilardi in the case decided by the Washington,
D.C., court. The brothers own Freshway Foods and Freshway Logistics
in Sidney, Ohio, and object to providing insurance that covers all
federally approved contraceptives.
Obamacare has faced political and legal hurdles, especially from
Republicans, since the president, a Democrat, made it his signature
policy. In June 2012, the justices upheld by a 5-4 vote the
constitutionality of Obamacare's core feature that requires people
to get health insurance. This issue is the first Obamacare case the
court has taken since then.
The companies involved do not all oppose all forms of contraception.
The contraceptive mandate covers various types of contraception
approved by the federal government, including Plan B, the so-called
morning-after pill, to which some Christians especially object,
viewing it as akin to taking a life.
RELIGIOUS RIGHTS FOR CORPORATIONS?
The first of the two consolidated cases was brought by two
plaintiffs, arts-and-crafts retailer Hobby Lobby Stores Inc and
Mardel, a chain of Christian bookstores. Both are owned and operated
by David and Barbara Green and their children, who are evangelical
The other case was brought by a Mennonite family that has a company
in Pennsylvania, Conestoga Wood Specialties Corp. This is owned by
Norman and Elizabeth Hahn and their three sons.
Hobby Lobby has around 13,000 full-time employees while Conestoga
Wood has 950.
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A ruling from the high court similar to the Gilardi decision in
Washington would enable the justices to duck the kind of criticism
they faced, mainly from liberals, four years ago when the court was
seen to side with the notion of corporate personhood. On a 5-4 vote,
the court endorsed broad free-speech rights for corporations in the
campaign finance context in a case called Citizens United v. Federal
The second question for the court is whether the religious
objections have any merit. The Washington, D.C., appeals court ruled
for the Gilardis on that question too, awarding them a preliminary
injunction that prevents the mandate from being enforced against
The Supreme Court could follow suit, or it could issue a split
ruling in which it finds the company owners have the right to make a
claim but then concludes that the argument has no merit. In that
scenario, the court would find that the mandate furthers a
compelling government interest and does not unduly burden the
The federal appeals courts to have ruled on the issue so far have
reached different conclusions. In the Hobby Lobby case, the
Denver-based 10th U.S. Circuit Court of Appeals said the company
could make a successful claim. By contrast, the Philadelphia-based
3rd U.S. Circuit Court of Appeals said that neither Conestoga Wood
nor its owners had a viable claim.
The Washington, D.C., federal appeals court was the only one that
found the individual company owners but not the corporation could
make a claim. In the November 2013 ruling, the court said on a 2-1
vote that the government could not enforce the mandate against the
Gilardi brothers and their companies while litigation continued.
Judge Janice Rogers Brown wrote for the majority that, as a result
of the regulation, the brothers "can either abide by the sacred
tenets of their faith, pay a penalty of over $14 million, and
cripple the companies they have spent a lifetime building, or they
become complicit in a grave moral wrong."
The Obama administration's position is that neither the owners nor
the companies have the legal grounds to challenge the mandate. The
challengers seeking the exemption see the litigation in starkly
"It's about religious freedom," said Mark Rienzi, a lawyer
representing the Green family in the Hobby Lobby case. "It's about
whether you give up your religious rights when you open a business."
(Reporting by Lawrence Hurley; editing by Howard Goller and Stephen
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