03/26/2014 07:50 pm ET Updated May 26, 2014

Hobby Lobby Is About Much More Than Birth Control

Yesterday the Supreme Court held a double session and heard arguments from Hobby Lobby and Conestoga Wood. Since both companies filed mirror certiorari petitions, I'm only going to discuss Sebelius v. Hobby Lobby Stores, Inc.; the outcome will be the same for both cases. At issue is whether the Religious Freedom Restoration Act (RFRA) of 1993 protects a company from complying with a government mandate that goes against the religious beliefs of the owner or owners. Specifically, Hobby Lobby's David Green and family, who own the closely held corporation, are devout Christians and have set up their business to mirror their religious beliefs, and they claim that the Affordable Care Act's mandate that corporations offer health insurance plans that cover certain kinds of contraception is unduly burdensome to their free exercise of religion. It's important to not get wrapped up in the contraception issue and pretend that this is a women's rights case. It is not. They could be morally opposed to widgets, and the legal argument would be the same. This case will all come down to the applicability of RFRA to corporations and whether the government has a compelling interest in mandating that corporations' health insurance plans cover birth control.

The RFRA was passed in 1993 and signed into law by President Bill Clinton in response to what Congress saw as legislation encroaching on the mandatory practices of religious groups. The law specifically cites the outcome of Employment Division, Department of Human Resources of Oregon v. Smith as a justification for its passage. It's important to note that this bill was introduced by then-Rep. (now-Sen.) Chuck Schumer (D-N.Y.) and passed by a House and Senate controlled by Democrats (with the Senate approving it 97-3). This was a bipartisan law with broad support coming head-on against a partisan bill with wavering support. The RFRA came as a direct result of Employment Division v. Smith, which had upheld an Oregon law barring Native Americans from collecting unemployment if their ritual use of peyote had resulted in their termination from a job. The law was broadly against unemployment benefits for anyone dismissed from employment for drug use, and the Supreme Court ruled that such a law could apply even to religious drug use. The decision was split 6-3, with the liberals on the court in the minority, arguing that to win a religious exemption, no second fundamental right needed to be implicated as the majority had said. More recently, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal held that the government did not have a compelling interest in banning peyote in religious ceremonies. That the justices decided 9-0 in favor of upholding the RFRA protection against the government is very informative regarding how the Supreme Court might be thinking now.

The law's stated purpose is "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened." Furthermore, the general theme of the law is that "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section." The law is about burdening the free exercise of religion; it is not concerned with the style that the law takes. It's wholly irrelevant that the contraceptive mandate applies to corporations rather than to people. The question will be whether David Green and his family are being substantially burdened by the contraception mandate. Here I think the Supreme Court recognizes the distinction that this is a closely held corporation rather than a publicly traded company with a discrete number of owners who are easily identified. Their religious beliefs are ascertainable, and a substantial burden can be divined. Judging by the Green family's Christian charitable work, including donating half a billion dollars and disseminating billions of copies of the Gospels, I don't see the court saying that forcing them to provide insurance that covers certain forms of birth control, which no one is contesting is against their faith, is not substantially burdensome to their free exercise of religion. Limiting any decision to a closely held corporation would narrow the scope of the decision and counter the government's correct slippery-slope argument

Assuming that the justices get to the merits of the contraceptives mandate, the real test will be whether the government has a compelling interest in mandating that corporations' health insurance plans cover birth control, and whether this mandate is the least restrictive means. The "least restrictive means" test is a red herring. Outside making birth control available over the counter, which the Supreme Court would never mandate, this seems like the least restrictive way to have birth control access guaranteed to everyone. Like a Tom Brady fourth-quarter Super Bowl drive, it all comes down to this: What is the government's compelling interest? The government argues that employees have a right to comprehensive coverage. I think it's a stretch to say that birth control is the linchpin of "comprehensive." The government also conflates family planning with birth control. While I'm sure birth control makes family planning easier, that's also not the government's greatest argument. The government was also smart to not go down the Marfan's rabbit hole. The government's best argument is that Hobby Lobby chooses to engage in commerce, and this is incidental to commerce. It would be much more compelling if the law hadn't come out after Hobby Lobby had started its business.

The main outcome of this case will be a precedent on the applicability of the RFRA to the owners of closely held corporations. The birth control aspect is great for selling newspapers but is generally a very replaceable cog in this case. So whether or not the government has a compelling interest (and their argument would be a lot better if we were talking chemotherapy instead of birth control), the dicta of this case will be the real precedential value.