The Supreme Court just agreed to decide two new religious exemption cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Store v. Sebelius. In both, the owners of closely held, family-owned corporations hold religious beliefs that it is wrong to use any devices or products that sufficiently risk killing a fertilized embryo, including by preventing implantation of the embryo. They also believe that it is wrong for them to be complicit in such killing of embryos, including by providing insurance plans for their employees that cover implantation-preventing contraceptives. They claim that, under the Religious Freedom Restoration Act of 1993, they should be allowed to offer their employees insurance plans that do not cover such implantation-preventing contraceptives.
There are a lot of related and complicated legal issues involved in those cases, so I thought I’d blog several posts about them next week, one on each of the main issues. I don’t have a bottom-line prediction on how the cases will come out, nor do I have firm views on how they should come out, largely because the compelling interest test that RFRA prescribes in such cases is so vague. (I’m also something of a middle-of-the-roader on religious exemption questions; I’m one of the few people, for instance, who has argued in print that both the Employment Division v. Smith rejection of constitutionally mandated religious exemptions and the Religious Freedom Restoration Act’s statutory call for religious exemptions are generally correct.) But in any event, I hope the analysis in the posts will be informative and perhaps even interesting.