Block on Trump's Asylum Ban Upheld by Supreme Court
We didn't have to be Miss Cleo or the late Sylvia Browne to figure this one out. With a widening chasm between circuit courts' opinions regarding the so-called Obamacare contraception mandate, it was only a matter of time before the Court granted certiorari in at least one of the lower courts' cases.
And after the court asked for the Solicitor General's input, and the government agreed that certiorari was appropriate, it was a near-certainty that the Court would take the case.
Well, the wait (for cert) is finally over. This morning, the Court agreed to hear and consolidate the Hobby Lobby and Conestoga cases, which could decide the limits of a corporation's religious rights, and by extension, could strike the provisions of Obamacare that require employers to pay for health plans that provide contraception, including the ever-controversial "morning after" pills.
Hobby Lobby v. Sebelius - Corporations Have Religious Rights
Using the logic of Citizens United (for-profit corporations are people, with free speech rights) and U.S. v. Lee (a private citizen's free speech rights don't disappear when the citizen incorporates for profit), the Tenth Circuit held that the Religious Freedom Restoration Act and the Free Exercise clause both apply to for-profit corporations, such as Hobby Lobby.
Conestoga Wood v. Sebelius - No, They Don't
Noting that corporations are a legal fiction, and that they cannot pray, worship, or otherwise practice religious observations, the Third Circuit held the other way, finding that the RFRA did not apply to corporations, and that these secular, for-profit entities do not have religious rights that would be trampled upon by the contraception mandate. The court also rejected the notion that the owners' religious rights "pass through" to the corporation.
How Do You Define 'Person'?
This could the biggest question in the case. We covered some possible outcomes in September, but the most intriguing issue involves a not-so-simple question: how do you define a "person"?
The Religious Freedom Restoration Act does not define the term. The Dictionary Act, which provides default definitions for the entire U.S. Code, includes corporations in the definition. But the Sixth Circuit used legislative history to avoid such an interpretation.
Like we said, we can't wait to see Scalia's reaction to the mere mention of legislative history.
If "person" includes corporations by the default definition, and the RFRA protects a person's right to religious freedom, the Tenth Circuit's holding may win out, based on the plain text of the statutes.