Judging from the hyperventilated responses from certain quarters in the wake of the Hobby Lobby decision one could conclude the SCOTUS codified the right of a private employer to compel certain religious observations by their employees. This is false.
Let’s review:
- The decision was based upon the Religious Freedom Restoration Act (RFRA)
- It applies ONLY to preventative coverage under the ACA
- It applies ONLY closely held private employers ( 5 majority shareholders or less)
- The abortifacients the Green family objected to are commonly available for purchase by any employee of Hobby Lobby with a prescription for them
There are several remedies available to the Obama Administration. Justice Kennedy noted that the government could simply pay for the birth control (at $32 per month for Plan B it would be a triviality to our three trillion dollar deficit) and take the employer out of the equation. The Administration could press Congress to repeal the RFRA (presumably Ms. Pelosi and Mr. Reid now regret their votes). They could also do nothing and allow employees of Hobby Lobby to spend their own money should they not desire any of the sixteen forms of birth control the Green family is willing to pay for.
The private employer’s ability to establish religious observation as a term and condition of employment remains severely constrained. EEOC v. United Health Programs is an excellent example of this protection. United Health Programs had a very specific set of quasi-religious practices that were requirements of continued employment including:
- Observation of a belief system called “Onionhead”
- Wearing of Onionhead buttons while at work
- Display Onionhead spiritual cards at workstations
- Participation in daily prayers and spiritual discussions
- Use of candles for lighting to provide a spiritual environment
United Health Programs is a third-party provider to insurance companies offering customer service to their policy holders.
Here is the main distinction between the two matters. Burwell v. Hobby Lobby turned on whether or not an employer could be coerced into paying for something it objected to under the RFRA. EEOC v. United Health Programs will turn on whether or not an employer can coerce employees into religious observation as a term and condition of employment under Title VII of the CRA.