In 1756, the Rev. Francis Alison, a prominent minister from Pennsylvania, urged people in the colonies of all religious persuasions to join together to help win the French and Indian War. In making a point about conscientious objectors, Alison argued that “[a]ll … should have a free use of their religion, but so as not on that score to burden or oppress others.” Alison’s understanding of religious liberty would be reflected in the Pennsylvania Constitution of 1776, which freed conscientious objectors from having to fight but required them to pay for a substitute.
The story of how conscientious objector laws have safeguarded religious liberty, while also protecting the rights of others—laid out in a brief filed by prominent military historians—should be front and center on Wednesday when the Supreme Court hears Little Sisters v. Pennsylvania and Trump v. Pennsylvania. In those cases, a religiously affiliated employer known as the Little Sisters is urging the Supreme Court to bless the Trump administration’s decision to give employers an unconditional religious exemption from the contraceptive coverage requirements of the Affordable Care Act and declare the ACA’s religious accommodation unlawful.
In 2014, a bitterly divided Supreme Court in Burwell v. Hobby Lobby Stores held that closely held corporations, whose owners had a religious objection to providing contraceptive coverage, were entitled to avail themselves of the religious accommodation contained in the ACA’s regulations. Under the Religious Freedom Restoration Act, such businesses would be entitled to shift the obligation to provide contraceptive coverage to their insurance companies. For the first time in history the Supreme Court held that some business corporations were entitled to religious accommodations, sending the message that owners of companies could invoke their religious beliefs to skirt the law.