Jewish community divided over Supreme Court decision

By Dmitriy Shapiro/JNS.org/Washington Jewish Week
With additional reporting by Judie Jacobson/Connecticut Jewish Ledger

Jewish community opinion is divided on a June 30 United States Supreme Court decision that dealt a blow to the Patient Protection and Affordable Care Act of 2010 (ACA). The court ruled in Burwell v. Hobby Lobby Stores Inc. that a portion of the historic health-care reform law colloquially known as “Obamacare” is unconstitutional.

In a 5-4 decision, the court said provisions of the law mandating for-profit corporations to provide contraception coverage through their company health-care policies, or face penalties, represent an unconstitutional violation of the Free Exercise Clause of the First Amendment as interpreted by The Religious Freedom Restoration Act of 1993 (RFRA).

The decision, written by Justice Samuel Alito, interpreted RFRA as applying not only to nonprofit corporations, as argued by the government, but that Congress intended to protect all individuals from federal infringement on their religious beliefs without excluding businesses conducted for profit.

“The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs,” wrote Alito for the majority.

Argued on March 25, 2014, the case centered on privately owned, for-profit corporations whose owners profess to harbor deep religious objections to mandated coverage for contraception for their employees through their company healthcare plans. In the case, three related cases were joined, led by the largest plaintiff, Hobby Lobby Inc.

With nearly 500 stores and more than 13,000 employees, Hobby Lobby is a national chain of arts and crafts stores operating as a closely held corporation led by David Green and his evangelical Christian family. Although Hobby Lobby is not a purveyor of religious objects, the Green family claims to operate its corporation in adherence with religious principles. The chain was joined in the suit by plaintiff Conestoga Wood Specialties, a Lancaster County, Pa.-based wood cabinet producer owned by the Hahn family, who are devout Mennonites.

Both businesses argued that their religious beliefs were being violated by the federal government’s mandate to provide some contraceptives, which they consider to be abortifacients. By refusing to cooperate with the mandate, they faced fines of as much as $1.3 million per day – a substantial burden, according to the majority.

Although some have warned that the Court’s decision opens the floodgates to corporations wishing to exempt themselves from the ACA’s mandate to cover 20 contraceptive methods approved by the Food and Drug Administration, the majority opinion was careful to note that the holding in Hobby Lobby applies only to closely held corporations.

Justice Alito, one of the most conservative justices on the court, was joined in the decision by Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Anthony Kennedy, considered the court’s swing justice.

Finding that the Department of Health and Human Services (HHS) had already exempted religious organizations and certain nonprofits, the majority ruled that the exemption should apply to companies like Hobby Lobby and Conestoga, which express sincere religious convictions.

“The decision has been hailed by some as a ‘huge blow’ to ACA, and as ‘very narrow’ by others. On some level, I suppose each characterization is accurate,” noted Woodbridge attorney Stuart Katz, who is a principal in the Employment and Labor Practice Group at the Bridgeport law firm of Cohen and Wolf, P.C., and co-chair of its Litigation Practice Group.

Once the Court determined that RFRA applied to for-profit companies, as well as religious institutions, and substantially burdened the owner’s religious exercise, he said, “the court then analyzed whether requiring such an employer to nonetheless provide contraceptive coverage is the government’s ‘least restrictive means’ by which to serve the needs of the women who want the contraceptives. To this question, the Court answered ‘no,’ determining that there are other ways of serving these needs, such as having the government pay for it, or using a ‘workaround’ that is already in place for nonprofit religious employers, which essentially requires the insurance company to pay.”

Thus, said Katz, “The likelihood is that, in the short term, employees will not be affected in any direct way.  Employers may be affected, to the extent that they hold a religious belief inconsistent with some aspect of the health care laws, and decide to mount a legal challenge.”

Still, Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty and counsel for Hobby Lobby, celebrated the decision, telling reporters that the landmark decision will hopefully put a stop to the federal government trying to “crush” religious individuals for conducting economic activity based on their religious principles.

“For several years we’ve had the federal government asserting that if you open up a business and you start earning a living, you have to check your religious liberty at the door. That religious liberty is something you exercise on Saturday or Sunday morning and maybe around the dinner table with your family but it’s not something you bring out into the marketplace,” Rienzi said. “I think it’s very good for religious freedom and religious minorities across the country that in fact they still have that right to exercise religion. They have it under civil rights laws and they have it under the First Amendment. So to me, that’s the biggest significance of the decision.”

But Katz noted “substantial concern” that the decision had much broader implications.

“A couple of questions immediately come to mind,” he said. “First, what does it mean to limit the analysis to ‘closely held’ companies? The IRS defines a ‘closely held corporation’ as one in which the majority of stock is owned by no more than five people and ‘is not a personal service corporation.’  Not surprisingly, though, there are a tremendous number of employers that meet these criteria, many of which are very large employers, like Hobby Lobby.  So, the implications of this decision will reach many companies and, in turn, the employees of these companies.  The notion that the ruling would not apply to corporations that are not ‘closely held’ arises from the theory that a company with diverse ownership – like dozens or hundreds of stockholders – will not easily be able to declare a religious belief, in the way that a closely held company may be able to.  But that certainly doesn’t mean that companies that are not closely held won’t argue that the ruling doesn’t apply to them. The Court has seemingly left that door open.

“A second question that many analysts have been asking is what laws will be challenged next? In other words, there are numerous medical procedures that may be implicated.  For example, vaccinations and blood transfusions may run counter to certain religious beliefs. Under this ruling, it would seem very possible that some closely held companies will be able to successfully challenge the law’s requirement to provide such medical services.”

Supreme Court Justice Ruth Bader Ginsberg

In her dissent – which she read from the bench, a move Supreme Court justices make when they are particularly passionate about a decision – Justice Ruth Bader Ginsburg echoed these concerns. (All three of the Court’s Jewish justices — Ginsburg, Elena Kagan and Stephen Breyer — dissented. They were joined by its third female justice, Sonia Sotomayor.)

“A wise legal scholar famously said of the First Amendment’s Free Speech guarantee: ‘Your right to swing your arms ends just where the other [person’s] nose begins.’ The dissenters believe the same is true of the Free Exercise Clause, and that Congress meant RFRA to be interpreted in line with that principle,” Ginsburg said. “Yes, the Court’s decisions have accorded ‘special solicitude’ to religious institutions. But until today, no similar solicitude has been extended to for-profit commercial entities.”

“Workers who sustain the operations of for-profit corporations commonly are not drawn from one religious community,” she said. “Indeed, by law, no religion-based criterion can restrict the workforce of for-profit corporations.”

Since much of the decision was based on the interpretation of RFRA, an act of Congress, Democratic lawmakers scrambled to make their voices heard after the opinion was announced and to try to find a solution.

“With this decision, the Supreme Court has put the health of American women at risk while opening the door for private employers who are looking for a reason not to comply with the law,” Sen. Ben Cardin (D-Md.) wrote in a statement. “Whether a woman uses contraception should be a private decision not subject to a financial veto by her employer. The Affordable Care Act guarantees the majority of women coverage for comprehensive preventive health services, including contraception. Imposing additional financial burdens on a woman because her employer claims to hold certain beliefs contrary to the law is harmful and sets a dangerous precedent.”

Jewish organizations and leaders from across the spectrum weighed in on the decision as soon as it was released. Some of these organizations wrote amicus, or “friend of the court,” briefs for this case. Some also were instrumental in lobbying for and passing RFRA, even though not in agreement with the Court’s interpretation in this case.

Orthodox groups lauded the decision, while Reform, Conservative and social action groups decried it.

The Orthodox Union (OU), the nation’s largest umbrella group of Orthodox congregations, which was heavily involved in supporting RFRA, “applauded” the ruling.

“Today the Supreme Court actualized the fundamental purpose of the First Amendment’s guarantee of the ‘free exercise’ of religion. In essence, the Court’s ruling stands for the proposition that—even when the government seeks to implement valuable policy goals—it must do so without trampling upon the conscientious beliefs of American citizens, especially, as is the case here, when there are many other ways to meet the policy goals without infringing on religious liberty,” said Nathan Diament, the OU’s executive director of public policy.

The OU joined other Orthodox organizations, under the umbrella of the National Jewish Commission On Law And Public Affairs (COLPA), in presenting an amicus brief to the court citing halachic authorities, one of the few times in history Jewish law has been referenced in a brief for this country’s highest court.

According to Nathan Lewin, lead counsel for COLPA, Orthodox Judaism treats all corporations as “partnerships,” meaning that a corporation owned by Orthodox Jews must operate in adherence to Jewish law.

But Reform Jewish leaders issued a joint statement calling the ruling “a disappointing setback for civil rights, women’s equality, and health care in the United States.”

Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, said, “It’s not a good day in terms of rights of women to have medical coverage on the same grounds as men do, and it is opening up a Pandora’s box of problematic religious claims from corporations that are going to exacerbate the culture wars in America.”

Asked whether the same protection offered in this ruling could be used to protect Jews also, Saperstein said that he couldn’t think of a religious Jewish reason in which a government could infringe on religion without violating the Establishment Clause of the First Amendment, such as requiring a Jewish corporation to stay open on Shabbat or close on Sunday.

Jewish women’s groups were united in their condemnation.

On its website, the National Council of Jewish Women said it decried the right of “closely held corporations … to deny their workers access to basic health care based on the owners’ personal religious views, threatening worker’s health and forcing workers to abide by their boss’s religious beliefs.”

Both Hadassah and Jewish Women International described the ruling as a step backward for women’s rights.

“It is deeply disappointing and concerning that the Court would allow an employer’s religious beliefs to supersede women’s health and the right of women to make their own health care decisions,” Hadassah noted on its website.

Jewish Women International (JWI), an organization that works to end violence against women, expressed outrage over both Monday’s ruling as well as the previous week’s ruling Supreme Court decision to eliminate the “buffer zone” between protestors and abortion clinic patients.

“I am shocked that within days, the Court has sent women’s rights backwards—removing hard-won protections and disallowing women the ability to make decisions about their own bodies,” said Lori Weinstein, CEO of JWI. “This is not a matter of protecting religious freedoms for non-religious institutions. This is about every woman’s right to life, to safety of body and mind and to safety and access to healthcare. The Supreme Court has failed to protect the women of this country. We deserve better.”

At least one shopper agreed – and intends to “vote” on the issue with her wallet.

“It seems to me the Court considered the needs of companies above the needs of women,” Hannah Jellinek told the Ledger. A New Haven college student and an accomplished artist, Jellinek was in the habit of stopping by Hobby Lobby a couple of times a week to replenish her art supplies. Now, though, the company can keep their 40-percent-off coupons. “I won’t be shopping at Hobby Lobby any longer,” she said.