In our opinion: Supreme Court upholds meaning and purpose to bipartisan law protecting free exercise of religion

By In Our Opinion

For the Deseret News

Published: Monday, June 30 2014 1:15 p.m. MDT

Updated: Tuesday, July 1 2014 1:08 p.m. MDT

Kristin Hughs, right, announces to supporters the Supreme Court's decision on the Hobby Lobby case in Washington, Monday, June 30, 2014. The Supreme Court says corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women.

Pablo Martinez Monsivais, Associated Press

On Monday, the Supreme Court upheld the free exercise of religion in a ruling involving the retail chain Hobby Lobby and its objection to abortion-inducing contraceptives. The decision is substantial in its own right, and delivers a rebuke to the Obama administration’s conduct respecting people of faith. And it accentuates this country’s long-standing commitment to religious liberty.

To understand the Hobby Lobby decision, we need to dial back the clock more than two decades. In 1990, the Supreme Court held that “neutral laws of general applicability” apply, even against a religion or individual with a deeply-held religious objection.

That prompted a bipartisan reaction. The effort to restore religious freedom was championed by Sen. Orrin Hatch, R-Utah, and the late Sen. Edward Kennedy, D-Mass. The movement culminated in 1993 passage of the Religious Freedom Restoration Act by overwhelming bi-partisan majorities in the House and Senate and signed into law by President Bill Clinton.

Introducing RFRA in 1993, then-Senate Judiciary Committee Chairman Kennedy declared that prior to the 1990 Supreme Court decision, “Government actions that interfered with individuals’ ability to practice their religion were prohibited, unless the restriction met a strict two-part test. It must be necessary to achieve a compelling governmental interest, and there must be no less burdensome way to achieve the goal…. Few issues are more fundamental to our country. America was founded as a land of religious freedom and a haven from religious persecution. Two centuries later, that founding principle has been endangered.”

Hatch and Kennedy carefully noted that not all claims of religious freedom would prevail. If the government’s interest is compelling, and there was no “less burdensome way” to achieve the government’s interest, the religious claim would fail. For example, the court has held, an individual or business motivated by a sincere religious belief would still be subject to the requirement to pay taxes – even to support governmental program to which the individual or business objects. The reason? “There simply is no less restrictive alternative to the categorical requirement to pay taxes,” the court has held.

In passing RFRA, Congress changed the law of the land, effectively overturning the 1990 Supreme Court decision. But the effort was muted in the following way: Congress, in passing a law, could not change the parameters of the Constitution. Therefore, the Supreme Court later held, RFRA did not apply to states.

Monday’s decision in Hobby Lobby re-affirmed that the federal government is bound by RFRA and therefore compelled to protect religious liberty. Even when the laws passed by Congress do not, on their face, target a particular religious practice, citizens have a method for seeking substantial protection of their religious freedom if threatened.

That’s why the Affordable Care Act’s requirement that businesses fund contraceptives needed to meet the two-part test articulated by Sen. Kennedy: a compelling government interest, and no “less burdensome” way to meet the goal.

Monday’s decision invalidated the Department of Health and Human Services’ conceptive mandate for the closely-held, private for-profit companies Hobby Lobby and Conestoga Wood, both of which base their practices and operations around Christian beliefs.

In the 5-4 decision, Justice Samuel Alito held that “the challenged HHS regulations substantially burden the exercise of religion” because of the business owners’ religious conviction that life begins at conception. “If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden it is hard to see what would.”

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