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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

Over the past 20 years, some past supporters have begun to question whether the law tilts too far in favor of religion in its attempt to balance the public's interests with individual conscience rights.

"It gives religiously motivated action a significant preference over other kinds of acts," said Robert Tuttle, a law professor at George Washington University.

He said RFRA wouldn't pass Congress today because a growing number of opponents now see it as tool to use claims of religious freedom to trample on the rights of others. "They recognize that RFRA as it’s framed is quite broad and really isn’t counterbalanced by concerns for the rights of others or those who may be burdened by the (religious) exemptions," he said.

Even supporters of RFRA agree their 1993 proposal doesn't have the support it did two decades ago. Laycock attributes the fallout to deep cultural divisions over issues of sexual morality, such as gay rights, same-sex marriage, abortion and contraception.

"What one side views as an evil, the other side views as fundamental human right," he said at the RFRA anniversary symposium.

The 84 lawsuits filed against the government over the ACA's contraception mandate are an example of that cultural divide in the case of birth control. The most high profile of those cases involves craft store chain Hobby Lobby.

The business was launched out of founder David Green’s garage in Oklahoma City in the early 1970s and has grown into one of the nation’s leading arts and crafts retailers with 500 stores in 41 states.

None of the stores are open on Sunday — something Green's attorneys use to prove the Green family practices its evangelical Christian faith in operating the business.

“It is by God’s grace and provision that Hobby Lobby has endured,” said Green in a press release. “Therefore we seek to honor God by operating the company in a manner consistent with Biblical principles.”

The company's employee insurance plan doesn't cover the contraceptive drugs Plan B and Ella, which can induce abortions, because offering them to employees would violate the Greens' religious beliefs against abortion.

So when the administration released the Obamacare rules requiring companies that employ at least 50 workers to provide those drugs and other forms of birth control under their health plans, Hobby Lobby sued under RFRA and the First Amendment's free exercise clause.

Forty-three other companies have followed suit, along with 40 religiously affiliated nonprofit schools and other organizations. All are making nearly identical religious freedom claims.

The contraception mandate has galvanized a religious coalition of diverse faiths that have different views on contraception but agree the mandate violates the principle of religious freedom.

"You’ve got a well known teaching of the country’s largest religious organizations and a piece of the president’s domestic policy. So, politically and religiously, the stakes are very high," Laycock said in an interview.

And for Hobby Lobby the financial stakes are enormous. The fine for non-compliance with the contraception mandate amounts to $1.3 million a day for employers the size of Hobby Lobby.

Protected or not

Hobby Lobby's owners claim the choice between living their faith or paying those fines meets the "substantial burden" test RFRA requires for someone to say a government regulation infringes on their right to exercise their religion. But the government argues that secular, for-profit companies like Hobby Lobby don't have any religious freedom to protect — regardless of the owners' beliefs.

RFRA protects conscience rights of individuals, the government contends, and the law doesn't mention for-profit enterprises having religious freedom.

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