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.
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.
Laycock, Thomas and others who helped draft and lobby for the bill agree that for-profit corporations aren't mentioned and weren't discussed during the early debates on RFRA. But they said that when Congress later enhanced religious freedom protections with the Religious Land Use and Institutionalized Persons Act in 2000, it was discussed that both laws applied to businesses as well individuals.
"That certainly was contemplated" when RFRA was drafted, said Hatch, who along with 11 other lawmakers have filed an amicus brief in support of Hobby Lobby's case. "It's deeply troubling to me to see this administration trample on the religious freedom (RFRA) seeks to protect."
The 10th Circuit Court of Appeals ruled in June that Hobby Lobby's owners do have religious freedom rights that have been burdened by the mandate, and it granted the company's request for an injunction against enforcement of the mandate while their case is pending. The government has appealed to the Supreme Court.
But two other circuit courts have sided with the government, prompting Conestoga Wood Specialties Corp. and Autocam Corp. to also file appeals to the high court. Bob Jones University has also filed an appeal in its contraception mandate case against the government, but on different issues.
Even Hobby Lobby took the unusual step in October of petitioning the court to grant the government's request for a hearing. "These issues need to be settled now by this court," Hobby Lobby's response to the government's appeal stated. "The existing conflict is likely to deepen rapidly, with the same issues pending in some (43) other cases around the country."
Lori Windam, an attorney for the Becket Fund for Religious Liberty, which represents Hobby Lobby, said their case will answer critical questions on the limits of RFRA's protections signed into law 20 years ago.
"You have a government regulation forcing people to either follow their faith or paying enormous fines," she said. "If RFRA can’t protect people from that, how much power does RFRA really have?"
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