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.”
The irony is the Obama administration could have avoided this setback if it had simply extended to businesses a system seeking “to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.”
The Obama administration, the court said, “provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.”
The Hobby Lobby decision establishes that business owners do not forfeit their right to the free exercise of religion when they form a for-profit business and enter into commerce. Just as it is well established that all entities, including businesses, enjoy constitutional rights such as the freedom of speech, it is now clear that a class of family-owned businesses enjoy the protections of religious liberty. (The court side-stepped the question about whether these protections apply to a publicly-traded company.)
Equally significant is the way that the Hobby Lobby decision underscored the role that religion plays in our nation’s public square. Justice Anthony Kennedy joined the majority, but also concurred with these stirring words: “Freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity . It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.”
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