On Tuesday, the Supreme Court will take its second look at the Affordable Care Act. This time the issue is whether the requirement of the Affordable Care Act that employers purchase health insurance for their employees or pay a penalty violates the religious freedom of corporations. In particular, the specific requirement at issue is that the health insurance policy must cover the purchase of medications, including contraceptives. Several corporations have filed law suits claiming that, because they believe that some contraceptives are immoral (because they believe that these contraceptives prevent a fetus from implanting in the uterus and thus are morally equivalent to an abortion), requiring them to purchase insurance for their employees that includes coverage for such contraceptives violates their religious freedom. These claims are raised under both the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (passed to overturn a Supreme Court decision narrowly interpreting the Free Exercise Clause).
There are three basic questions in the case. First, can a secular corporation (i.e. one not formed for a religious purpose or by a religious organization) have religious beliefs? Second, if a secular corporation does have religious beliefs, who gets to decide what the corporation believe. Third, assuming that a corporation can have religious beliefs, does the "contraceptive mandate" violate the right of the corporation to act on its religious beliefs?
The first two questions are questions of corporate law. Corporations are legally separate persons from their owners and managers for a long list of long-established reasons. A corporation is not the majority shareholders; it is not the board of directors; and it is not the officers of the corporation. In particular, the board of directors, the officers, and the controlling shareholders are not free to do what they want without taking into consideration of the best interests of everyone who might have a legal interest in the corporation. Even when all of the shareholders agree on something that they would like to see done, the corporation is not simply the alter ego of the shareholders. There is a real possibility that the Supreme Court will look at the potential implication of this case on corporate law and find that none of the corporations in this case have a religious belief. Of course, that merely punts the real decision down a term or two because there are religious foundations waiting in the wings.
The last question (assuming that the court reaches this issue) may come down to how the court frames the issues. Anybody who follows recent American politics knows how multiple Republican consultants have looked at the work of George Orwell and drawn inspiration from the Ministry of Truth in 1984. One thing that they have made abundantly clear is that the answer to a political question depends upon how the question is framed. While true in the battle for public opinion (whether the estate tax is seen as a "death tax" or a "greedy heirs tax" matters to whether people support it), it is normally less true in legal cases. This case unfortunately is an exception to the rule.
The corporations want to frame this issue as they are being forced to pay to give their employees access to "immoral" contraceptives separate from the rest of the requirement to provide insurance. The government wants to frame this issue as the companies being required to provide insurance coverage to employees as part of the "salary" of the employee. How, the employee uses this insurance coverage is up to the employee. If potential misuse of an employee's salary allowed an employer to refuse to pay that salary, then an employer should be free to replace a pay check with a series of non-transferable vouchers to assure that the employee does not use their pay to purchase alcohol or cigarettes or questionable literature or guns or gas-guzzling vehicles or high-fat food or to gamble.
Needless to say, if the view that the company is buying insurance and not a particular part of the insurance coverage (with the worker choosing what they use the insurance for), the owner's concern about the immoral activities of their employees is not a sufficiently substantial concern to exempt them from the mandate, any more than it exempts them from minimum wage or similar law. On the other hand, if the Supreme Court separates the contraceptive coverage from the rest of the insurance policy, then the religious objection becomes more substantive. In that case, the odds are that the court will, at the very least, find that the mandate to include contraceptive coverage violates the Religious Freedom Restoration Act, which places a higher burden on the government. (There is at least one or two justices who might vote to find that the mandate violates the RFRA who have voted for a lower standard in Free Exercise cases.)