The Supreme Court has decided to accept a set of seven cases that could expand the disastrous Hobby Lobby decision from last year. Linda Greenhouse of the NYT sums up that opinion: “the Supreme Court ruled that a company with owners who objected on religious grounds to birth control was entitled to opt out of the federal requirement to cover contraception in its employee health plan.” The majority based that decision partly on the fact that religious nonprofits were given an opt-out mechanism under the law.
The case SCOTUS will now consider deals with that nonprofit opt-out mechanism. Religious schools, religious nonprofits, and even some nuns are challenging the mechanism, arguing that it makes them complicit in the contraceptive choices of their employees. Greg Lipper, my colleague over at Americans United, made a nice analogy:
The plaintiffs in these cases are challenging the accommodation itself. By analogy, this is like a conscientious objector challenging the process for opting out of the draft.
One thing has been lost in the coverage about these cases: the form itself. The form that supposedly burdens the free exercise of religion of the schools, nuns, and nonprofits. That form is exactly two pages long and there are only blanks on the first page. Five, count ’em, five blanks: (1) entity name, (2) name of individual filling out the form, (3) mailing address, (4) signature, and (5) date.
And if that form is really too onerous for the nuns, “an eligible organization may also provide notice to the Secretary of Health and Human Services.” That’s how easy this opt out process has been made for these religious groups. This simplicity shows these challenges for what they truly are. They are not objections to a burden on the free exercise of religion—how can they be when there is no burden at all? These cases are actually objections to employees having any personal choice to contraception. The Solicitor General points this out. These employers object “to any system in which their employees gain an entitlement to contraceptive coverage.” This is about imposing religious dogma on employees. This point, which is difficult to refute, shows how damaging the Religious Freedom Restoration Act—the law on which the Hobby Lobby decision and these challenges are based—truly is. RFRA and its state counterparts must be repealed. We need, as Greenhouse suggested, an Establishment Clause Restoration Act.
Please circulate this form and tell your friends. This is what passes for a “burden” on the freedom to exercise one’s religion in America. Talk about Christian privilege . . .
For a simple breakdown of the pending cases, please check out the Peabody Award-winning SCOTUSblog.
