On November 2, 2012, we reported that a federal court in Michigan had enjoined the application of the rule of the Patient Protection and Affordable Care Act (“ACA”) that would have required a “secular, for-profit, family owned and operated corporation” owned by a practicing Catholic to provide employee health insurance that covers contraception.

The owner contended that it was contrary to Catholic doctrine to use, pay for, or support the use of contraception, and that having his company provide or participate in health insurance that includes providing contraceptives (or else incur a penalty) violates his sincerely-held religious beliefs and substantially burdens his free exercise of religion.

An Oklahoma federal court subsequently issued a decision directly at odds with the Michigan one, demonstrating the split among federal courts over the rights of for-profit, secular employers to challenge the validity of the ACA’s women’s preventive care services mandate. The Court denied a similar injunction motion filed by Hobby Lobby Stores and Mardel, both for-profit, secular corporations owned by a family management trust whose trustees are practicing Christians.

The Court held that Hobby Lobby and Mardel, as secular, for-profit companies, do not satisfy the ACA’s definition of a “religious employer,” and concluded that plaintiffs had no likelihood of succeeding on the merits of their claims.

The Hobby Lobby case was just argued today before the Supreme Court on the issue of “whether corporations may refuse to provide insurance coverage for contraception to their workers based on the religious beliefs of the corporations’ owners.”  Both sides agree that the stakes are high – on many levels.

The company and its religious supporters claim that religious freedom is at stake — but can a corporation have a religion?  Other attributes of personhood? And does it adopt the religion of its owner(s)?  And if the corporate form was created to shield an owner from personal liability what of this shield may be chipped away if it is held that there the shield is religiously permeable?  And what about the religious rights of employees with religions different from the corporate owners?

In the New York Times today there is an interesting discussion/debate on the possible implications of a Hobby Lobby decision on employment discrimination based upon sexual orientation.  One of the commentators is Chai Feldblum, an EEOC Commissioner.

The debate’s intro reads:

“The federal government no longer discriminates against same-sex couples. But it does not forbid discrimination over sexual orientation or gender identity: In most states, employers can fire, or not hire, because of a person’s sexual orientation, and discrimination in housing, education, public accommodations and other contexts is widely legal.  Some say a Supreme Court case on religious freedom could expand that ability.

Does the United States need a new approach to nondiscrimination law, or should it simply recognize more “protected classes”?”

The rest is fascinating reading.