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U.S. legislators come to Hobby Lobby's defense in contraception lawsuit

Published: Wednesday, Sept. 2 2015 6:43 p.m. MDT

The owners of Hobby Lobby and a sister company, Mardel Inc., a Christian bookstore, sued the government in September, claiming the Affordable Care Act's mandate to provide certain emergency contraceptives violates their Christian beliefs. () The owners of Hobby Lobby and a sister company, Mardel Inc., a Christian bookstore, sued the government in September, claiming the Affordable Care Act's mandate to provide certain emergency contraceptives violates their Christian beliefs. ()

A group of U.S. legislators came to the defense of Hobby Lobby this week, accusing the Obama administration of violating a federal law they passed, and that they contend should exempt religious business owners from the government's mandated birth control coverage.

The legal brief by nine senators and two representatives, all Republicans, was among a dozen filed late Tuesday in the U.S. 10th Circuit Court of Appeals, which denied Hobby Lobby's request in December to temporarily block enforcement of the mandate.

The court this spring is expected to hear Hobby Lobby's appeal of a federal district judge's ruling in Oklahoma that found for-profit businesses, like the craft store chain, aren't religious organizations protected by the Religious Freedom Restoration Act.

But the veteran legislators, who all voted for RFRA in 1993, argued the law was intended to prevent the government or the court from carving out a class of believers whose religious liberty wouldn't be protected.

"That ruling was incorrect, and the (government's) continued relegation of for-profit corporations to third-class status in the administration’s invented hierarchy of religious objectors is similarly wrong," the brief stated.

The owners of Hobby Lobby and a sister company, Mardel Inc., a Christian bookstore, sued the government in September, claiming the Affordable Care Act's mandate to provide certain emergency contraceptives violates their Christian beliefs. In particular, Hobby Lobby CEO David Green and his family contend the morning-after and week-after birth control pills are tantamount to abortion. They also object to providing coverage for certain kinds of intrauterine devices.

The legislators, who tell the court they have an interest in "vindicating RFRA’s blanket protections against the selective and stingy approach adopted by (the administration)," back the Greens' claim that the mandate violates the religious exemption intended under the law.

“While any brief by sitting members of Congress is significant, this one comes from members who originally supported the federal civil rights law — the Religious Freedom Restoration Act of 1993 — which is at the heart of the mandate challenges,” Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which is representing Hobby Lobby, said in a statement. “The brief leaves no doubt that Congress intended to protect the religious freedom of those like Hobby Lobby and its founder, David Green, against federal attempts to force them to insure abortion-inducing drugs.”

The brief was filed in behalf of Daniel R. Coats, R-Ind., Thad Cochran, R-Miss., Mike Crapo, R-Idaho, Charles Grassley, R-Iowa, Sens. Orrin G. Hatch, R-Utah, James M. Inhofe, R-Okla., Mitch McConnell, R-Ky., Pat Roberts, R-Kan., Richard Shelby, R-Ala., and Reps. Lamar Smith, R-Texas, and Frank Wolf, R-Va.

In addition to the congressional brief, the State of Oklahoma, the Christian Medical Association, Archdiocese of Oklahoma City, the Bioethics Defense Fund and seven other groups filed briefs in support of Hobby Lobby.

A spokesman for Health and Human Services Secretary Kathleen Sibelius said the department won't comment on pending litigation.

Legal experts watching the mandate cases agree the strongest challenges by Hobby Lobby and more than 40 other business and nonprofit religious groups that have sued the government over the mandate are under RFRA.

Congress passed the Religious Freedom Restoration Act in response to a 1990 Supreme Court ruling in a case that involved an Oregon man who was fired as a counselor at a drug rehabilitation clinic for using peyote as part of a religious ritual. The high court determined the state could deny unemployment benefits to the man even if use of the illegal drug was for a religious purpose.

The congressional brief states that Congress created RFRA as a "super-statute" to cut across all federal laws that burden the free exercise of religion and to protect religious freedom from special interest politics. They point out how an attempt during debate of the bill to restrict the religious rights of prison inmates was rejected, vindicating "the one-rule-for-everybody principle reflected in RFRA’s text and structure."

To override RFRA's blanket protection, the government must show a law furthers a compelling government interest and uses the least restrictive means of applying that law.

The government included contraception, along with several other services, in the ACA's preventative health care mandate to promote women's health. The services are to be provided for free through worker health care plans. The government has also proposed third parties can provide contraception coverage for religious employers who object to contraception.

But the legislators contend the administration undermined its compelling interest and violated RFRA when it decided to exempt some religious employers from the contraception mandate and not others. Churches and some nonprofits are exempt, but most religiously affiliated schools and hospitals along with all for-profit businesses, like Hobby Lobby, must comply or face fines.

The brief also argues that corporations were intended to be protected under RFRA.

"Congress could have carved out such a category of unprotected 'persons' in RFRA itself or in a later statute, but it did not," the brief states. "And this judicially created carve-out is directly contrary to one of the primary reasons Congress enacted RFRA in the first place: to prevent those charged with implementing the law from picking and choosing whose exercise of religion is protected and whose is not."

In a motion opposing Hobby Lobby's request to block enforcement of the mandate, the government offers a different interpretation of RFRA, saying Congress intended for the law to apply only to religious employers that "rely on religion as a reason to deny employees protections of federal law" and not to private corporations.

The government said granting Hobby Lobby an exemption to the birth control mandate would have far-reaching implications. "(Hobby Lobby's) position would extend to for-profit, secular employers the very prerogatives that Congress — and the Constitution — have reserved for religious employers alone, and it would undermine a wide array of measures that protect the general welfare through corporate regulation."

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