When the U.S. Supreme Court hears oral arguments on March 25 in the contraception case involving Hobby Lobby and Conestoga Wood Specialties, it will be asked to decide novel and difficult questions concerning the interpretation and application of the Religious Freedom Restoration Act (RFRA). Readers of Report from the Capital and even casual Court observers are aware of these uncharted issues. Can commercial, for-profit corporations exercise religion? Can the shareholders’ rights of conscience be imputed to the corporation? Can their exercise of religion be “substantially burdened” by objectionable activity provided by an insurance company and chosen by female employees? Does government have a compelling interest in making sure all women have access to preventive health care services, like contraceptives, sufficient to justify that burden?
But this case is not just about interpreting and applying RFRA. One of the more than 80 friend-of-the-court briefs marshals a frontal assault on RFRA’s constitutionality. No matter how the High Court interprets RFRA and applies it to the facts in this case, it must not summarily declare it unconstitutional.
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