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Supreme Court to decide whether to tackle religious liberty, contraception mandate

Published: Saturday, Nov. 23 2013 10:00 p.m. MST

The U.S. Supreme Court is expected to announce this week that it will take on a case that pits claims of religious freedom against the Affordable Care Act's birth control mandate.

Alex Brandon, Associated Press

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U.S. Supreme Court is expected to announce this week that it will take on a case that pits claims of religious freedom against the Affordable Care Act's birth control mandate.

The justices could decline to hear any of the four cases in which businesses have claimed a government requirement to offer contraceptives through their employee health care plans — or face hefty fines — violates their religious beliefs.

But with roughly 40 similar lawsuits pending and federal circuit courts divided on the question of whether for-profit companies have religious freedom rights, legal experts agree the high court will decide it's time to step in and settle one of the more contentious standoffs involving President Obama's signature domestic policy.

The case would also be a significant test of the Religious Freedom Restoration Act, signed into law 20 years ago this month to shield religious institutions and believers from government regulations that could infringe on their beliefs and practices.

"Contraception may turn out to be RFRA’s shining hour," Doug Laycock, a legal scholar on religious freedom, said earlier this month at a symposium marking two decades of the landmark legislation. "Here is a potential horror story of the sort we feared back in 1993."

Burden of proof

Oliver "Buzz" Thomas was among the few First Amendment lawyers stunned by a U.S. Supreme Court decision in April 1990 that denied unemployment benefits to a pair of American Indians because they had been fired as drug counselors for using an illegal drug, peyote, in a religious ceremony.

The ruling got little mention in the local Tennessee press where Thomas lives. But the First Amendment lawyer and minister said he was "staggered" when he read Justice Antonin Scalia's opinion the next day at the office.

"It was a complete change in the way we were going to evaluate claims of conscience," Thomas recalled at the same RFRA anniversary gathering Laycock addressed. "We lost any protection that we had for religious exercise."

The defendants in the case, Alfred Smith and Galen Black, had used peyote as part of a religious ritual that they argued was protected under the First Amendment. But instead of applying past legal precedents that would have weighed the government's interest in banning peyote against Smith's and Black's constitutional right to exercise their faith, Scalia said if a law is neutral toward religion and applies to everyone then it doesn't matter if it burdens religion.

Thomas got on the phone to help convene a braintrust of religious liberty scholars, including Laycock, who decided to push for legislation that would restore earlier judicial tests that ensured government did not substantially burden the exercise of religion without a compelling reason for doing so.

Their plan had the backing of a diverse coalition of religious, secular and civil rights groups. After a couple of years of lobbying and changes to the language, the legislation gained extraordinary support in Congress, sailing through the Senate, 97-3 and passing the House by a unanimous voice vote. President Bill Clinton signed it into law on Nov. 16, 1993.

"It was the most important bill I helped put through in my time here," said Sen. Orrin Hatch, R-Utah, a key sponsor of the law. "I became the prime sponsor and got (Democratic Sen.) Ted Kennedy to sign on, and at the signing ceremony he was one of the most enthusiastic about the bill."

The Hobby Lobby case

That broad support has gradually eroded, however, beginning with a 1997 Supreme Court decision that found RFRA was an unconstitutional exercise of Congressional power when applied to state laws.

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