Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Free Exercise of Religion by Secular Organizations and Their Owners: Implications for the Affordable Care Act (Aca) *

Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Free Exercise of Religion by Secular Organizations and Their Owners: Implications for the Affordable Care Act (Aca) *

Article excerpt

Recent court decisions have highlighted the ongoing controversy over the scope of the Affordable Care Act's (ACA's) contraceptive coverage requirement1 and, more generally, whether religious freedom rights extend to commercial entities as well as nonprofits and individuals.2 Although illustrated by the contraceptive coverage requirement, the question of whether secular, for-profit entities qualify for religious freedom protections reaches farther than the ongoing debate over ACA. Congress has enacted a number of exemptions to accommodate religious objections to legislative requirements, but those exemptions generally have been limited to individuals and nonprofit organizations.3 That is, for-profit entities' right to exercise religion generally has not been recognized in existing law. Litigation of the contraceptive coverage requirement as well as cases involving commercial entities' objections to providing services for same-sex wedding ceremonies reflects heightened attention in courts to the question of accommodation for such objections.4 Several federal courts and some state decisions that have considered the issue have reached different conclusions, and the U.S. Supreme Court, by granting certiorari in Conestoga and Hobby Lobby Store, appears poised to provide guidance on this issue in the future.5

This report examines the constitutional and statutory protections related to free exercise of religion, including current Supreme Court interpretations, as well as judicial and legislative avoidance of defining the parameters of religious belief. It also discusses significant examples of existing religious exemptions in current law, including employment nondiscrimination, health care, and public accommodations law. Finally, it analyzes recent federal judicial decisions that have considered the religious freedom rights of commercial entities whose owners have religious objections to the contraceptive coverage requirement.


Since 1879, the Supreme Court has drawn an important distinction in religious freedom cases, noting that religious exercise includes both protection of religious beliefs and actions based on those beliefs.6 The Court has permitted the government to regulate actions stemming from religious belief, but not the religious belief itself.7 Over time, the constitutional protection against interference with religious beliefs has been augmented by statute.8

Constitutional Protection

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.... "9 Historically, the U.S. Supreme Court had interpreted the Free Exercise Clause to require that the government show a compelling interest for any government action that interfered with a person's exercise of religious beliefs.10 However, in 1990, the Court reinterpreted that standard, issuing a decision in Employment Division, Department of Human Resources of Oregon v. Smith in which the Court explained that the Free Exercise Clause never "relieve[s] an individual of the obligation to comply with a valid and neutral law of general applicability."11 The Court's decision lowered the constitutional baseline of protection, meaning that laws that do not specifically target religion are not subject to heightened review under the First Amendment. Accordingly, it is less likely that individuals and entities with religious objections will be able to argue successfully for constitutional protection from laws that only incidentally burden their religious exercise.

The Court's decision in Smith emphasized that the legislature remained free to consider whether an exemption for the accommodation of religious exercise would be appropriate through the political process, even if the exemption were not required as a matter of constitutional law.12 In other words, religious exemptions generally are a matter of legislative discretion under current Court jurisprudence. …

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