by Jeffrey Rosen
March 25, 2014
This week, the Supreme Court is considering two cases that may determine whether the justices invoke the First Amendment to blow up anti-discrimination laws and the Affordable Care Act. On Monday, the Court delayed a decision about whether to hear Elane Photography v. Willock, a lawsuit filed by a photography studio in New Mexico whose owners said they had a religious objection to shooting a same sex commitment ceremony. And on Tuesday, the Court will hear 90 minutes of oral arguments in the most closely watched cases of the term, Hobby Lobby and Conestega Woods, which raise this question: Can religiously motivated employers in for-profit corporations claim an exemption from the Obamacare requirements to provide contraceptive carriers?
Although there are technical differences between the two cases, both will force the justices to confront the future balance between the First Amendment on one hand and anti-discrimination laws on the other. In particular, the justices will have to decide whether the logic of Citizens United—that individuals who organize themselves as for-profit corporations have the same First Amendment rights as natural persons—includes rights of religious freedom as well as free speech. The justices may find narrower grounds to decide all three cases, but taken to their logical conclusion, the claims of the religious business owners in all of them would mean the end of anti-discrimination laws as we know them.