The stage is set for a battle that will end...

The stage is set for a battle that will end in a Supreme Court ruling on Obamacare and religious freedom. Credit: ISTOCK

Do corporations have a right to religious liberty? The contraceptive mandate of the Affordable Care Act has made this abstract-sounding question into the hottest constitutional issue of the day -- hotter, even, than the right to privacy from government snooping.

The Supreme Court has gotten into the game by agreeing to hear a case on the issue and, in the meantime, temporarily staying the law under a range of circumstances. The stage is now set for a battle that will end in the court's second major Obamacare decision later this year.

The legal issue is a bit complicated. The Affordable Care Act requires employers above a certain size to provide insurance that covers contraception. The law exempts religious organizations such as the Roman Catholic Church. It includes private employers such as Hobby Lobby, the retail arts and crafts chain whose challenge to the law the Supreme Court has already agreed to hear. In between are entities affiliated with religious organizations but not controlled by them, such as Catholic hospitals and universities. They don't formally have to provide contraceptive coverage themselves: Instead, they tell their insurance company that they object on religious grounds, and the insurer then provides coverage "separately" but at no cost to the woman. It is this provision that Justice Sonia Sotomayor has blocked from going into effect pending its review by the appellate courts.

The two issues -- private corporate employers and religiously affiliated organizations -- pose slightly different questions. Start with corporations, which logically shouldn't enjoy religious liberty rights any more than they enjoy free speech rights. The framers would have laughed at the Citizens United decision that gave corporations carte blanche to make campaign donations, because to them corporate bodies were artificial creatures designed to perform certain specified tasks, not emanations of the shareholders' selfhood. James Madison and the other fathers of the First Amendment would have found it similarly absurd to say that corporations have a right to religious freedom.

The problem is that, since Citizens United, corporations do have free speech rights. Once they do, it follows that their rights should extend to the rest of the First Amendment.

The Supreme Court reasoned in Citizens United that people associate through corporations to advance their political ideas. If this is true, then it must also be true of people's religious goals. Two wrongs don't make a right; but one wrongly discovered right (corporate free speech) should be extended to another soon-to-be-invented right (corporate religious liberty) to avoid the greater wrong of an incoherent framework of civil liberties. (Technically, the contraceptive mandate cases will be decided not under the Constitution but under the Religious Freedom Restoration Act. Yet that act is based on constitutional ideals, and the logic of constitutional rights should apply to it.)

When it comes to religiously affiliated organizations, the problem is more subtle still. The Obama administration was trying to accommodate Catholic affiliates by introducing the rules that allow them to certify that they want an exemption from providing coverage. And perhaps by rights the church that perfected casuistry (which before Protestantism wasn't a dirty word) should be able to live with a legal procedure that separates the organization from the provision of contraceptive insurance in formal terms.

What is more, as a practical policy matter, it seems wrong that non-Catholic employees of ecumenical entities not controlled by the church (such as colleges and hospitals) should be denied contraceptive coverage. The Obama administration's solution was therefore arguably a sound Solomonic compromise.

Requiring a certification for an exemption comes with other problems. As long ago as the late 1700s, religious dissenters such as Baptists and Quakers in New England complained that it was unfair to make them get certificates that would exempt them from paying taxes to support ministers whose beliefs they did not share. These dissenters -- and those who have followed -- often sincerely believe that such a requirement imposes a burden that differentiates them from their fellow citizens (as opposed to, say, a general requirement to prove tax-exempt status). In light of our traditions of religious liberty, the concern is not groundless. Yet it could be addressed by simply skipping the step of certification and allowing religiously affiliated organizations not to pay for contraceptive care.

More important, though, is a related concern that may really be motivating Catholic organizations: They don't believe that the formal declaration (via certification) is enough to distance them from what they see as the sin of facilitating sinful behavior. Here the optimal solution is for the Obama administration to acknowledge that the ACA requires all insurers to provide contraceptives as part of the price of doing business. Why would this work? Because those employers who won't pay for contraception on religious grounds can preserve their consciences by knowing that they really aren't paying for it. Instead, the state is making their insurance companies do so, at no cost to them. This should be morally satisfactory -- and neither the law nor the Constitution requires more.

Noah Feldman, a law professor at Harvard University and the author of "Cool War: The Future of Global Competition," is a Bloomberg View columnist. Email him at


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