Our whole show this week was devoted to the Supreme Court’s 5 to 4 decision that family-owned corporations cannot be required under the Affordable Care Act to pay for insurance coverage for contraception. Mark Walsh & Jonathan Aberman had the following guests on the show:
Dan Conkle, a Robert H. McKinney Professor of Law and Adjunct Professor of Religious Studies at Maurer School of Law, Indiana University, says of the decision,
“The thrust of the decision is a blockbuster, a finding of religious protection for profit-making corporations under RFRA is unprecedented. In my judgment, it’s a bold step for the Supreme Court to take. The converse is that in terms of the specific ruling, I think it is narrow. The court is just saying that in terms of this particular set of circumstances, where the government already has in place an accommodation for non-profits, there’s no good reason not to extend it to closely-held profit-making companies. The court isn’t reaching publicly held corporations or other claims for exemptions that might in fact present more difficult decisions.” (Listen to the whole interview. Runs 11:17)
Sandy Levinson, Constitutional scholar and Law professor at UT Austin had this to say about the historical decision:
“If one is unhappy with the decision (as I tend to be), primary blame should be placed on Congress, which passed the two relevant statutes, RFRA and RLUPA, at least as much on the Court. That is, Justice Alito’s opinion is a perfectly reasonable interpretation of the statute. . . . Justice Ginsburg’s dissent is quite powerful, though its first couple of pages are really terrible. Why do I say that? Because she violates a maxim of dissenting. Do not play Paul Revere or Chicken Little (either about the British coming or the sky falling) unless that really is the case. As a matter of fact, Alito takes great pains to suggest that the majority decision is quite modest. . . . As is usually the case, it is much too early (perhaps by many years), to figure out how truly important the case is.” (Listen to the whole interview. Runs 13:12)
Lina Khan is a reporter and policy analyst with the Markets, Enterprise and Resiliency Initiative at the New America Foundation. Khan’s recent article “Thrown Out of Court: How corporations became people you can’t sue” got us thinking about how Supreme Court decisions (Hobby Lobby is not the first) can change the way our society looks at itself.
Mark Goldfeder, Senior Lecturer at Emory Law School says he doesn’t think the Hobby Lobby decision will further shrink health care coverage.
“Requiring the owners of a small, closely held business to go against their religious beliefs would essentially be telling them to close up shop, which is a substantial burden. This is as opposed to a large publicly traded corporation, in which anyone who wanted could just easily sell their stock.
This will not open the door for employers to cloak illegal discrimination behind religious practice. Hobby Lobby won because, as it turns out, there is a less restrictive way to do this, without burdening any religious beliefs and without violating a compelling government interest. Here, the government can chip in, which eliminates the burden on Hobby Lobby and protects employee’s entitlements.” (Listen to the whole interview. Runs 13:19)
Pema Levy, Washington Correspondent for Newsweek, wrote a thought-provoking piece titled “Does the Hobby Lobby Decision Threaten Gay Rights?” She helped us answer the question: Could this ruling lead to corporations to use their religious beliefs to seek exemptions from anti-discrimination laws? (Listen to the whole interview. Runs 12:11)