The Supreme Court on Tuesday takes up the most closely watched issue of its term: Does the Obamacare law violate the religious freedom of private employers by requiring them to provide insurance coverage for contraceptives?
To answer that question, the justices must first decide whether the companies challenging the law, three for-profit corporations, even have religious views in the first place. The Obama administration says they do not, arguing that freedom of religion is an individual right, not a corporate one.
At issue is a provision of the healthcare law that requires companies with more than 50 employees to cover preventive care services, which include such contraceptives as morning-after pills, diaphragms, and IUDs.
The law was challenged by the Hobby Lobby, a chain of 500 craft stores employing 13,000 people; Mardel Christian bookstores, with 35 outlets and 400 employees; and Conestoga Wood Specialties, whose 950 employees make doors and other parts for kitchen cabinets.
The Obama administration says freedom of religion applies only to the owners of companies challenging the law, not to the companies themselves.
Hobby Lobby and Mardel are owned and operated by an Oklahoma family, David and Barbara Green and their children. Hobby Lobby's official statement of purpose commits it to "honoring the Lord in all we do by operating the company in a manner consistent with biblical principles."
Norman and Elizabeth Hahn of Pennsylvania, who own Conestoga Wood with their three sons, are Mennonite Christians.
Both the Greens and the Hahns believe that the use of some contraceptives amounts to abortion, destroying a human life by interfering with a fertilized egg.
"This case is entirely about whether the government can coerce families of faith to buy these life-destroying products and coverage for other people," Matt Bowman, a lawyer for Conestoga Wood, said in an interview.
The Obama administration argues that the freedom of religion applies only to the Greens and the Hahns individually, not to the for-profit corporations they run. It's the corporations, not the family members themselves, who are required to provide insurance coverage for contraceptives under Obamacare, the government says.
And because the Supreme Court has never said that a for-profit corporation can claim it has freedom of religion, the government says, the law does not violate the Constitution.
The administration also says the law serves an important public purpose.
"Nearly half of all pregnancies in the United States are unintended," U.S. Solicitor General Donald Verrelli said in a court filing. He said contraceptives "reduce the risk of adverse outcomes of pregnancies that are too closely spaced." Women's groups say oral contraceptives also reduce the risk of ovarian cancer by up to 50 percent.
But the owners of the three companies challenging the contraceptive coverage law say they are not required to check their religious beliefs at the corporate door.
Paul Clement, a lawyer for Hobby Lobby, said in a filing that the Supreme Court "has never suggested that free exercise rights are purely personal, or that individuals could not exercise religion when in engaged in particular activities like making money or when using particular means like a corporation."
It can't be, he says, that the First Amendment singles out religious exercise as the only right that cannot be exercised while earning a living.
The companies are among more than three dozen for-profit corporations that challenged the contraceptive mandate in federal courthouses nationwide. Hobby Lobby and Mardel prevailed in the lower courts, but Conestoga Wood lost its claim.
The companies rely not only on the Constitution but also on a federal law, the Religious Freedom Restoration Act, which says the federal government cannot "substantially burden a person's exercise of religion," even if the burden results from a general law intended to apply to everyone.
They have the support of friend-of-court briefs from religious groups as well as 21 states and 107 members of the U.S. House and Senate. Neither the Constitution nor federal laws, they argue, can deprive a group — even a for-profit corporation — of religious freedom.
The ACLU and other civil liberties groups line up on the other side. Julian Bond, former chairman of the NAACP, warns that while religious motivations have inspired reforms toward social justice, "religion has frequently played the opposite role in our nation's history, invoked by those who sought to perpetuate discrimination based on race or gender."
Slavery and Jim Crow laws, Bond says, were once defended on religious grounds.
The Supreme Court will issue its decision sometime before the term ends in late June.
First published March 21 2014, 11:46 AM