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What Hobby Lobby's case could have in store for religious freedom and ACA

Published: Sunday, March 23 2014 10:30 a.m. MDT

Having to decide between a violation of conscience or crippling fines and penalties is what RFRA was intended to avoid, claim advocates for Hobby Lobby and Conestoga. But the federal courts have been split on whether RFRA applies to a business, with 32 district and circuit court judges ruling in favor of for-profit companies, including Hobby Lobby, and another six court finding against Conestoga and five other companies.

The conflicting decisions prompted the government, Hobby Lobby and Conestoga to ask the Supreme Court to weigh in on the matter.

Those lower court rulings set up "the first time that the (Supreme) Court has had to squarely consider the meaning of 'substantial burden' since Employment Division of Oregon v. Smith (in 1990), and there it rejected the test altogether," Tuttle said.

In the Oregon case, justices ruled that the state could deny unemployment benefits to a worker who was fired for using an illegal drug (peyote) for religious purposes. Congress responded to the ruling by passing RFRA.

Conscience rights questioned

The new question posed in the Hobby Lobby case and others like it is whether corporations can claim the same conscience rights and protections under RFRA as an individual can.

Kenneth Starr, a former U.S. solicitor general who is now president of Baylor University in Waco, Texas, supports the notion of extending religious freedom protections to corporations. "The short legal answer is that, in my view, the law is clear that filing the appropriate papers to create a corporation does not suddenly divest the owners of their rights," he said.

Starr agreed that, for example, the law protects a kosher butcher serving observant Jews or a halal meat market catering to Muslims, from being mandated to sell pork products, which are prohibited in both religions.

But Ira C. Lupu, a professor at George Washington University's law school, said Hobby Lobby's objections to certain contraception methods are not the same as a kosher butcher refusing to sell religiously prohibited food products.

"In the Hobby Lobby case, it's their relationship with their employees" that's at issue, he said. It's "not because the employer can't have religious attitudes … (but) when they impose detriments on their employees, in conflict with regulation, now we have a different situation."

A Supreme Court decision granting corporations wide "personhood" protections under RFRA could create numerous opportunities for businesses to challenge a range of government regulations, including equal employment laws, according to a "legal backgrounder" on the case by the Pew Research Religion & Public Life Project.

"A decision in favor of Hobby Lobby and Conestoga might give for-profit employers a strong foundation to raise religious objections to hiring gays and lesbians or to providing the same-sex spouses of employees with the same benefits extended to opposite-sex spouses," wrote Pew researcher David Masci and Tuttle.

Starr won't speculate on whether the Hobby Lobby case could influence state cases involving small business owners who refuse to serve same-sex nuptials for religious reasons. But he said for some businesses, such as wedding photographers and bakers, "it may well be that their (business) activity is not protected by federal law."

Protecting belief

But experts on both sides of the contraception mandate cases acknowledge that laws have often treated corporations as "persons," as University of Chicago law professor Eric Posner wrote recently in the online publication Slate.

"At other times, the statute does not define 'persons,' but courts interpret the word to include corporations because they believe that is what Congress intended," he wrote. "There is even a general interpretive rule in the law that when Congress says 'persons,' it means corporations as well, unless the context of the statute provides otherwise."

But the Justice Department argued in its brief filed with the Supreme Court, "there is no reason to think that Congress intended RFRA to grant for-profit corporations rights that previously have been reserved to individuals and religious nonprofit institutions."

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