By Mike Appleton, Weekend Contributor

“First, we hold as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protection. Such corporations can be ‘persons’ exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.”

 -Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013)

“Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a ‘person’ under RFRA.”

-Conestoga Wood Specialties Corporation v. Sebelius, 724 F.3d 377, 388 (3d Cir. 2013)

David and Barbara Green and their family own and operate Hobby Lobby stores, an arts and crafts chain employing some 13,000 people at over 500 locations. As committed Southern Baptists, Mr. and Mrs. Green believe that the contraception mandate under the Affordable Care Act requires their company to provide its employees health insurance coverage for abortafacients, a violation of the Greens’ religious beliefs. Conestoga Wood Specialties manufactures wood cabinets and has 950 employees. It is wholly owned by the Hahn family, all of whom are members of the Mennonite religion. They share the Greens’ opposition to the ACA mandate for the same reasons.

The Greens and the Hahns now await a decision by the Supreme Court on their claims that corporations for profit, at least those that are closely held, should be regarded as persons entitled to the protections of the Religious Freedom Restoration Act. The Tenth Circuit supports their argument; the Third Circuit does not. The Supreme Court has never addressed the question. In my view, however, it is the wrong question.

The appeal has generated 84 amicus briefs, the majority of which support the Hobby Lobby/Conestoga position. Highly respected legal experts have lined up on both sides, reflecting the broad divergence of opinion on the meaning and scope of the Free Exercise Clause. But while many of the briefs are quite interesting and scholarly, none of them address what I believe to be the central issue, whether the owners of a commercial enterprise should be permitted to invoke their religious beliefs as a basis for shifting the costs of compliance with obligations imposed by a statute of general application upon thousands of individuals who may or may not share those beliefs. At bottom, the case is not about Free Exercise; it is about resolving a conflict between Free Exercise and the Establishment Clause in a pluralistic society.

Whatever one may believe about the Affordable Care Act, it is the law of the land and has survived constitutional challenges. It represents a fundamental change in public policy, a decision to expand the availability of health care to millions of citizens. It is clearly one of the most significant pieces of legislation to emerge from Congress since the New Deal. The contraception mandate is an important part of the ACA, intended to provide preventive healthcare services for women, including FDA-approved contraception and counseling services, without cost sharing. It can hardly be argued that the government does not have a compelling interest in improving access to health care for millions of women.

It is also crucial to remember that the accommodation sought by Hobby Lobby/Conestoga is not constitutionally mandated. In Employment Division v. Smith, 494 U.S. 872 (1990), the Court abandoned the strict scrutiny test previously utilized in Free Exercise cases and held that neutral laws of general applicability are binding regardless of the burdens imposed on religious exercise. Indeed, the Religious Freedom Restoration Act was enacted in direct response to that decision. The effect of the RFRA was to restore the strict scrutiny standard. In other words, the Hobby Lobby/Conestoga litigants are claiming a right to a permissive accommodation under RFRA.

In my opinion, the position of the Greens and the Hahns is most closely analogous to that of the petitioner in United States v. Lee, 455 U.S. 252 (1982). In that case a member of the Old Order Amish religion employed several other Amish men to work on his farm and in his carpentry shop. He argued that forcing him to withhold and pay Social Security taxes on his employees violated tenets of his religion in violation of the Free Exercise Clause.  After reviewing the importance of mandatory participation in the Social Security system, the Court concluded that exempting Mr. Lee from its requirements would be unduly disruptive, adding “To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good.” It concluded, “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” 455 U.S. at 261.

In the Lee case, the employer sought to deny his employees the benefits of the social security system based upon what he deemed in good faith to be the demands of his religion. In the case under consideration, the Greens and the Hahns seek to deny their employees important benefits under the ACA on similar grounds.

So how do the claims in Hobby Lobby/Conestoga implicate the Establishment Clause? In Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), the Court held that a Connecticut state statute granting employees an absolute right not to work on whatever day of the week they observed as the Sabbath violated the Establishment Clause because it “imposes on employers and employees an absolute duty to conform their business practices to the particular religious practices of the employee by enforcing observance of the Sabbath the employee unilaterally designates.” 472 U.S. at 710. And in Texas Monthly, Inc. v. Bullock, 489 So.2d 1 (1989), the Court struck down a Texas statute that granted religious periodicals an exemption from the state sales tax, finding that it constituted “state sponsorship of religious belief” and “burdens nonbeneficiaries,” contrary to the Establishment Clause. 472 U.S at 15.

The essence of the claims of the Greens and the Hahns is that their religious beliefs should prevail over the religious beliefs (or unbelief) of their employees, thus permitting them to shift the financial burden of statutory employee benefits to their employees or to third parties. Regardless of whether freedom of religion is purely a personal right or one exercisable by a for-profit corporate entity, the Free Exercise Claims in this instance are on a collision course with the Establishment Clause. The Establishment Clause ought to prevail.