Town of Greece and Hobby Lobby – Religion in America Under the Robert’s Court

In Town of Greece v. Galloway, which was decided about two months ago, the Supreme Court held in a 5-4 decision that a town board’s practice of beginning its public sessions with a Christian prayer did not violate the Establishment clause of the Constitution. The Court reversed the Court of Appeals’ decision and, in light of this decision, one is hard-pressed to think of an Establishment claim that would now prevail at the Court. (Decisions barring school prayers, clergy-led prayer at a public high school, student-led prayer at football games, etc., may be in jeopardy unless the Court views prayers in a school setting in a different light.)

Fast-forward to June 27 and we have the Burwell v. Hobby Lobby case decided by the same five Justices. This opinion held that owners of a closely held, for-profit, corporation may exercise their religious beliefs by refusing to provide contraception coverage for employees, as required by the Affordable Care Act. The suit in Hobby Lobby was brought under the Religious Freedom Restoration Act passed by Congress to overrule a Supreme Court decision in which Congress felt the Court had overstepped its bounds relating to a particular Free Exercise exemption. Justice Samuel J. Alito, Jr., writing for the majority, held that Congress intended to expand and provide broader protection for religious liberty and not merely to restore the balance that had existed before.

Justice Alito, writing for the 5-4 majority, and Justice Anthony Kennedy concurring, reasoned, in part, that the employees would still be covered for all forms of contraception through a process created by the Obama administration to accommodate religious nonprofit organizations. That process allows religious nonprofits to obtain an exemption by signing a short form certifying its religious objections and sending a copy to its third-party insurance administrator, which then is obligated to provide the coverage separately to employees without charge.

A few days later, however, those same Justices signed a temporary order that appears to backtrack from the assurances given by Justices Alito and Kennedy. The Court’s new action temporarily (the Court could reverse its order) frees Wheaton College, a Christian college in Illinois, from having to go through the exemption process. Wheaton filed a lawsuit arguing that the mere signing of the form would burden its religious exercise rights by making it complicit in providing certain forms of contraception which it objects to.

The Court’s order in the Wheaton matter stated that no form or notification to insurance providers was needed — all Wheaton had to do is tell the government in writing “that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraception services.”

The difference between the opt-out procedure relied upon in the Hobby Lobby case and the notice allowed by the Court’s subsequent order in the Wheaton matter may not seem like much, but it could have a substantial effect in hampering contraception coverage.

Now, in the wake of Hobby Lobby, President Obama is under increased pressure from religious groups demanding that they be excluded from an expected executive order barring discrimination against gays and lesbians by companies with government contracts.

There is no telling how far this will go, but clearly Town of Greece v. Galloway and Hobby Lobby appear to be just the opening salvos. For a more in-depth analysis of these decisions, please see an article in The New York Times written by Linda Greenhouse on July 9, 2014: “Reading Hobby Lobby in Context.”

Should you have any questions regarding the U.S. Supreme Court rules, please do not hesitate to contact Roy Liebman directly. Mr. Liebman is the Director of Counsel Press’ U.S. Supreme Court Department; he specializes exclusively in U.S. Supreme Court practice and has an in-depth knowledge of what is happening at the Court, at all times.

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