March 27, 2014
Column #1,700
A Landmark Religious Liberty Case
By Mike McManus

In a landmark case this week the Supreme Court appeared narrowly supportive of objections by two family-owned businesses on religious grounds to being forced to give employees “morning after pills” that abort a growing embryo. Of Obamacare’s mandate to offer 20 different forms of birth control, the companies provide 16, opposing only Plan B-type drugs that cause abortion.

That mandate has sparked scores of federal suits by Catholic dioceses, Southern Baptists, Catholic University, Wheaton College and for-profit companies.

The first to reach the Supreme Court were the cases of Hobby Lobby, a company with 561 stores owned by a Catholic couple, David and Barbara Green, and Conestoga Wood Specialties, a cabinet-making firm owned by a Mennonite family.

Hobby Lobby takes pride in honoring God by operating their company “in a manner consistent with Biblical principles,” says David Green. For example, wages begin at 90% above the minimum wage, and the stores are closed on Sunday – a big day for retailers – so employees can worship and enjoy a day of rest.

However, their attorney, Paul Clement, was unable to complete his second sentence before being sneeringly interrupted by Justice Sonia Sotomayor asking if his case included blood transfusions, vaccines and products made of pork that some object to on religious grounds.

Justice Elena Kagan chimed in asking about employers who object to funding vaccinations for employees. None were named. This was pure harassment.

Clement noted that Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 (unanimously by the House, and nearly so in the Senate) that prohibits the federal government from imposing a “substantial burden” on a person’s exercise of religion unless there is a “compelling governmental interest.”

Kagan argued that RFRA could be used by employers who could claim religious objections to minimum wage laws, family leave or child labor laws. Clement easily dismissed her “parade of horribles.”

However, Sotomayor noted the companies could choose “not to give health insurance and pay not that high a penalty.”

Clement replied Hobby could pay a penalty of $475 million or drop coverage and pay $2,000 per employee or $26 million. However, Chief Justice John Roberts stated that part of the owner’s commitment to employees was to provide health insurance.

Clement replied that if it dropped health coverage it would have to increase wages plus pay the $26 million, and would be worse off.

Justice Anthony Kennedy expressed some sympathy for religiously devout business owners that do have rights like that of an individual, but asked how that should be balanced against the “rights of the employees?” The workers might not share “religious beliefs of the employer ” He felt worker’s interests shouldn’t be “just trumped” by the owners’ beliefs.

Clement agreed and added that women could get an abortion - with perhaps the government paying for it.

U.S. Solicitor General Donald Verrilli argued that to allow for profit corporations to “make claims for religious exemptions” to general laws would be a “vast expansion of what Congress” had in mind in passing RFRA.

Chief Justice Roberts doubted that large publicly traded corporations would make such a claim, implying that he could accept such a claim by family-owned corporations.

In one of the liveliest exchanges, Kennedy charged that in Verrilli’s view, corporations “could be forced in principle to pay for abortions.”

Verrilli responded, “The law is to the contrary.” Kennedy snapped, “But your reasoning would permit that.”

The Chief Justice asked, “Isn’t that what we are talking about in terms of their religious beliefs,” the drugs “they believe provide abortions?”

Verrilli replied that while he did not question the sincerity of the companies’ beliefs, but federal and state laws that preclude funding of abortions, do not consider the drugs to cause abortions.

Hold on a minute. They are called “morning after pills” for a reason, that after a couple has had sex, which might have caused a pregnancy, the woman’s taking of the pills will kill that embryo.

Galen Carey, of the National Association of Evangelicals, is hopeful a majority of the court “will recognize the religious freedom issue. The plaintiffs have a strong case and do not want to live in a country where good people are made to do things they believe are wrong.”

Mike Huckabee asserted “The First Amendment states that Congress shall pass no law that prefers or prohibits freedom of expression. IF Obamacare forces Hobby Lobby to provide abortion drugs even though the privately owned company opposes it on moral grounds – that’s a fundamental loss of liberty.”

It is indeed.