Last week, the United States Supreme Court heard oral arguments in a celebrated challenge by Hobby Lobby Stores, Inc. to the Affordable Care Act, popularly known as Obamacare. At issue is whether closely held for-profit corporations like Hobby Lobby – owned by a religious Christian family that opposes several forms of contraception on religious grounds – can claim a religious exemption under federal law from the so-called contraceptive coverage mandate in Obamacare based on the religious beliefs of the corporation’s principals.
The Department of Justice acknowledges that individuals can claim an exemption if they can demonstrate an adverse impact on their religious beliefs. However, the department maintains that if they choose to do business in a corporate form, a common practice in order to provide a limit on financial liability, individuals cannot make that claim on the theory that a corporation, as a legal fiction, can have no religious scruples.
In late January, The Jewish Press reported that COLPA, the National Jewish Commission on Law and Public Affairs, had submitted a friend-of-the court brief, authored by the prominent constitutional lawyer Nathan Lewin on behalf of seven major national Orthodox Jewish organizations, advising the court that if the government’s position were sustained, “observances of American Jews may be significantly curtailed.”
The brief explained that Americans who observe Jewish ritual laws, which often are at odds with standard societal practices, not infrequently operate individual or family-owned businesses and incorporate for financial security. Since Jewish law does not distinguish between individual and corporate business form for purposes of religious practice, general government regulation could create a particular dilemma for observant business owners if they are not able to claim the right to an accommodation.
Interestingly, this issue was front and center in the argument before the Court. Justices Samuel Alito and Stephen Breyer focused on the problems that would face kosher slaughterhouses that are operated as corporations. Federal and state humane slaughter laws require that an animal be stunned before the throat is cut in order to limit the pain felt by the animal. There are built-in exceptions for Jewish ritual slaughter, which requires that the animal be fully conscious, and Justices Alito and Breyer raised questions as to whether the Department of Justice’s position would in effect put kosher slaughterers out of business, since, as corporations, they could not invoke an exemption based on the religious beliefs of the owners.
A decision is expected by June. It should have a lot to say about the kinds of accommodations the law will henceforth provide for us as we navigate the intersection between our ritual requirements and standard societal practices.
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