Secular Corporations Cannot Exercise Religion, My Friend

[cbayer]

http://prospect.org/article/secular-corporations-cannot-exercise-religion-my-friend

The 6th Circuit Court of Appeals takes issue with a company's cries against providing contraception to employees.

SCOTT LEMIEUX SEPTEMBER 19, 2013

Earlier this week, the 6th Circuit Court of Appeals rejected claims stating the requirement that corporations performing secular functions—in this case, the manufacturing company Autocam—cover contraception as part of their employee-insurance packages represented a violation of these corporations' rights. The 6th Circuit is the second circuit court to reject these claims, following the 3rd Circuit (conversely, the 10th Circuit held that there was a "likelihood" that the Hobby Lobby chain of craft scores was "substantially burdened" by the requirement.) Perhaps even more interesting is the reasoning the 6th Circuit panel used to reach its decision. According to the court's persuasive argument, it is not possible for a for-profit corporation with secular purposes to "exercise" religion in a way protected by the Constitution or federal statues.

To provide the relevant background, the most obvious source for a claim that the contraceptive coverage requirements violate religious freedom is the free exercise clause of the First Amendment. In the landmark 1990 decision Oregon v. Smith, however, the Supreme Court held that even if it burdened religious practices, a generally applicable policy does not violate the First Amendment unless it is specifically targeted at a religious group or practice. Under this standard, the argument that the contraceptive requirements violate the free exercise clause is a complete non-starter. The requirement was generally applied, and its goal was not to burden any particular religious group.

However, there is another potential avenue for a lawsuit. In the Religious Freedom Restoration Act of 1993, Congress attempted to re-establish the standard that Smith effectively replaced. The Supreme Court ruled in 1997 that the law could not supersede Smith as a matter of constitutional law. However, RFRA still binds the executive branch. Under RFRA, people alleging a rights violation have to show that the practice would "substantially burden a sincere religious exercise." If a prima facie showing can be made, then the burden shifts to the state to show that it is narrowly tailored to a compelling state interest.

In my judgement, the idea that the contraceptive requirement "substantially burdens" a religious liberty interest is utterly specious. The Sixth Circuit determined, however, that it was not even necessary to reach this question. In an opinion written by the George W. Bush appointee Julia Smith Gibbons (and joined by the Obama nominee Jane Branstetter Stranch and the George H. W. Bush nominee Joseph Martin Hood), the court held that a for-profit corporation with primarily secular purposes cannot "exercise" religion, making the question of whether the ACA's contraception requirements "substantially burden" religious practice moot.

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