Religious Freedom in Justice Kennedy’s Court

by Helen M. Alvare

Certainly, the Court appeared troubled at the prospect of denying both the corporation and the individuals who incorporated it all free-exercise rights, across the board.

And there was some openness to the notion that the government could find a less restrictive (of religious freedom) way to do what the Department of Health and Human Services wants here — to provide more contraception, free to women and minor girls.

I was troubled at the pursuit of the “parade of horribles” line of questioning of Paul Clement. Clearly, if corporate actors had wanted to raise religious objections to all kinds of non-discrimination laws (race, gender, etc.), they would have done so in the past. But they haven’t. Also, clearly, it’s not as if granting for-profit corporations free-exercise rights means they win and the government loses, period. There are so many steps between recognizing their rights and their “winning”! They have to demonstrate that the corporation has religious beliefs, that they are “religious,” not something else, like philosophical . . . that they are sincere. And then the government still wins, if it can show that its competing interests are compelling.

I was also sorry to see that any of the justices might embrace the following circular reasoning, though I have hope a majority might escape it. The reasoning is that anytime the government invents a new entitlement via employers, employers’ refusal to provide it constitutes impermissible harm to third-parties (employees) sufficient to warrant the government’s imposition of the entitlement as a compelling state interest! Where would this end? Justices Anthony Kennedy and Stephen Breyer seemed to understand that it has no logical end — mandatory abortion coverage as necessary health care is a logical step! Attorney General Donald Verrelli’s argument simply noted that no such mandate presently exists, but of course he’s wrong. Several of the drugs the current mandate requires do destroy embryos, as Kathleen Sebelius has acknowledged in her testimony before Congress.

So it’s a war of slippery-slope arguments. Our side’s is much stronger, but as usual . . . the ball seems to be in Justice Kennedy’s Court.

— Helen M. Alvaré is a professor of law at George Mason University and co-founder of Women Speak for Themselves. She wrote an amicus brief for the Hobby Lobby case.

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