WASHINGTON -- In his opinion concurring with the Supreme Court's decision in the Hobby Lobby birth control case Monday, Justice Anthony Kennedy may have tipped his hand on a related group of lawsuits brought by nuns and religious nonprofits against the contraception mandate.
The Supreme Court decided on Monday that closely held for-profit corporations such as Hobby Lobby, a craft supply store owned by Christians, should be allowed to opt out of covering birth control if they morally object to it. Justice Samuel Alito wrote in the majority opinion that because the government already carves out an accommodation for religious nonprofits, it would not be a substantial burden on the government to extend that accommodation to religiously owned businesses.
Little Sisters of the Poor, an organization of Catholic nuns, and several other religious nonprofits have also sued against the contraception mandate even though they qualify for the accommodation, because they believe it does not do enough to separate them from the act of covering birth control. The accommodation says religious nonprofits can fill out a form directing a third-party insurer to pay for the coverage instead of the objecting employer, but the religious groups argue that even filling out a form violates their beliefs.
Alito deliberately left the door open for a ruling either way on the merits of the religious accommodation. "We do not decide today whether an approach of this type complies with [the Religious Freedom Restoration Act] for purposes of all religious claims," Alito wrote. "At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well."
But Kennedy, who would likely be the swing vote in a future ruling in the Little Sisters case, indicated in his concurring opinion on Monday that he would be more sympathetic to the administration than the religious groups on that particular debate.
"The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it," wrote Kennedy. "That accommodation equally furthers the Government's interest but does not impinge on the plaintiff's religious beliefs."
Kevin Martin, an expert in constitutional law and former law clerk for Justice Antonin Scalia, said that while the conservative justices clearly did not rule on the constitutionality of the religious accommodation, Kennedy "goes out of his way in the other direction to say the accommodation does not burden religious exercise rights."
"It may be that because he didn't have the Little Sisters case before him, you can't read too much into it," Martin said, "but it should give the plaintiffs cause for concern."
Martin said he would be "stunned" if the Supreme Court didn't take up the case next year.