RENEE MONTAGNE, HOST:
Now let's get one more perspective on a deeply polarized debate, a debate set off by this week's Supreme Court ruling in a case brought by the craft store chain Hobby Lobby. The court found that some business owners with religious objections to contraceptives cannot be required to provide them to their employees with their health insurance plans. But does that ruling end there? Our Steve Inskeep digs deeper into what's fueling this debate.
STEVE INSKEEP, HOST:
The polarization started with the court opinions. Justice Samuel Alito argued that majority decision was very narrow and carefully tailored. Justice Ruth Bader Ginsburg said the decision opens the door to other challenges to federal rules. To see where we really are, we've reached out to Thomas Berg at the University of St. Thomas School of Law in Minneapolis. Welcome to the program, sir.
THOMAS BERG: Thank you. Glad to be here.
INSKEEP: Is this ruling likely to limit women's access to contraceptives in some way?
BERG: Well, if you look at both the majority opinion and especially Justice Kennedy's concurrence, they both focus on the fact that there is already a mechanism in place whereby employers can object to providing contraception, but women still get the contraception provided through the insurer.
INSKEEP: Oh, this was the mechanism that was used for religious nonprofits. They already had an alternative, and so now the suggestion of the court is that other employers could ask the government to provide them the same alternative.
BERG: That's right; the suggestion is if it worked for the nonprofit employers, it can also work for the for-profit employers. This is not ultimately a case about whether women should be able to get access to contraception or not. It's about who's going to fund it.
INSKEEP: I want to make sure that we follow the competing interests here because the court acknowledges the government has a significant interest in providing health insurance in a uniform way. Of course the other interest is a religious interest, the religious objection of the employer. Justice Samuel Alito, in deciding whose interest wins, applied a test of sorts, a phrase that he got out of a law from the 1990s. Can you explain that?
BERG: Yes, the key phrase the court used is that the government has to show it has a compelling interest in burdening religious freedom, and it has to do so by the least restrictive means. The Religious Freedom Restoration Act was statute - allows you to raise a claim. Of course we know from looking at other lawsuits that people can raise claims, and that doesn't mean that they will succeed. What the court held pretty firmly is that for-profit corporations are not barred from raising claims.
INSKEEP: Now, Justice Ruth Bader Ginsburg, in her dissent, raises or refers to some actual past court cases and wonders if they might apply in similar cases. For example, there was a case of a restaurant owner who did not want to serve black patrons because of a religious objection to desegregation. Is it possible that someone in a case like that could apply Samuel Alito's test - Justice Alito's test and say, look, you need to find a less restrictive alternative for me to deal with your desegregation law?
BERG: Alito in the majority opinion expressly cuts off that option and says that there is a compelling interest in preventing racial discrimination, given the history of our country - a civil war, Jim Crow. That's a direct answer to Justice Ginsburg's hypothetical there. Now...
INSKEEP: But wait a minute - but wait a minute because Justice Alito acknowledged that even in the contraception case, the government has a compelling interest. He says, I don't question that, but I still rule against the government because I think they can come up with a less restrictive alternative.
INSKEEP: Why wouldn't someone say to the government, come up with a less restrictive alternative for me to deal with black people?
BERG: Sure, that's a fair question. The court says discrimination cases are categorically different than this kind of funding of employee insurance, where again the question is, who is going to pay for it? And if the insurance can be provided by someone else, then there is indeed no harm to the employees. There are some cases out there about wedding photographers and same-sex weddings. I think those cases will continue to be litigated. This - the Hobby Lobby decision does clearly say that a for-profit business can raise religious freedom claims. Under the compelling interest standard, which has been applied in previous cases, no one has ever come close to winning on a claim that they could refuse to serve anyone in a restaurant. So, yes, there will be other cases, but I don't think we're going to see the parade of horribles that Justice Ginsburg talked about. The Religious Freedom Restoration Act has been on the books for 20 years, and there are very few claims by business corporations. So if that didn't happen over the last 20 years, when those cases could have been brought, I don't think Hobby Lobby is going to make a huge difference.
INSKEEP: Thomas Berg at the University of St. Thomas. Thanks very much.
BERG: Thanks, Steve.
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