Did Supreme Court uphold, or cross, the line?

With Burwell v. Hobby Lobby decision

Shopping carts sit on the parking lot near the entrance of the Hobby Lobby store in Jefferson City on Saturday, July 5, 2014.

Shopping carts sit on the parking lot near the entrance of the Hobby Lobby store in Jefferson City on Saturday, July 5, 2014. Emma Kessinger/News Tribune

In the U.S. Supreme Court’s Hobby Lobby decision, did justices push aside accepted tenets of law, in order to give business owners an unprecedented right to impose their religious convictions on employees? Or did they simply uphold cherished ideals of religious freedom?

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Joshua Hawley addressed a number of interested parties as he spoke recently at the Jefferson City Diocese Chancery about representing Hobby Lobby in its case at the United States Supreme Court.

The answer may be both, depending on one’s outlook.

In “Burwell v. Hobby Lobby,” the Supreme Court ruled that closely-held, for-profit corporations are exempt from laws they religiously object to, if there is a less restrictive means of furthering the law’s interest. The ruling was prompted by lawsuits filed by family-owners of the craft-supply giant, Hobby Lobby, who disagreed with the “contraceptive mandate,” a federal regulation adopted under the Affordable Care Act requiring employers to cover certain kinds of birth control.

University of Missouri Law School Professor Joshua Hawley helped litigate the landmark case. On Monday, he was delighted with the court’s 5-4 ruling.

“I think it’s a modest ruling. A careful ruling. But a decided victory for religious liberty,” said Hawley, who also serves as the senior counsel at the Becket Fund, a religious liberty legal foundation that provides free services to clients.

Speaking to a group gathered for lunch at the Catholic Chancery in Jefferson City in late June, Hawley noted religious liberty is America’s “first liberty,” not only because it comes first in the Bill of Rights, but also because it’s “so foundational for all our other personal freedoms.”

He sees it as a line informing officials where they cannot cross.

“Even for people who are not religious, it is important because it protects all our other freedoms,” he said.

Explaining the case, Hawley noted the Affordable Care Act (ACA) required all businesses of 50 or more employees, including non-profit agencies, to pay for all 20 forms of FDA-approved contraception, including four believed — by some — to induce abortion.

More than 100 groups — divided between for-profit companies and non-profit organizations — filed suit over the law.

Hawley said the craft supply giant started in 1970 when owner David Green borrowed $500 to buy picture-frame supplies. In 1972, he opened his first storefront. By 2014, he owned nearly 600 stores with 13,000 employees.

“The Greens are the quintessential success story,” Hawley said. “From the beginning, they wanted to run Hobby Lobby in accordance with their religious convictions.”

Hawley said, in part, it was the Greens’ religious convictions — the company’s charter included a religious statement, the family is devoted to missionary work and the stores remain closed on Sundays — that helped them convince the court of the sincerity of their faith.

He explained: “Our arguments have been two-fold. First, that the U.S. Constitution and the Bill of Rights’ First Amendment protects the free exercise of religion. Period. It’s not ‘only if you stay in your parish’ or ‘only if you practice your faith at home’ or ‘unless if you start a business.’ It applies to all people, everywhere. There’s no limitation on the free exercise of religion.”

Second he noted in the 1990s a bi-partisan Congress passed the Religious Freedom Restoration Act (RFRA), which prohibits government from substantially burdening a person’s exercise of religion unless the government demonstrates that the requirement or law furthers a compelling governmental interest and does so in the least-restrictive manner.

“It says that if a person of faith is burdened by a regulation, the government has to show it has a very, very important interest in doing so,” Hawley said. “The government has not shown it has a compelling reason to make these regulations stick.”

He noted a compelling governmental interest might be the need to insist upon a blood transfusion for a dying child or the requirement that all school children be vaccinated, even if such practices offend a parent’s religious teachings.

“The government hasn’t gotten close to making the case that conception is a compelling interest,” Hawley scoffed.

The Supreme Court’s decision disappointed observers who had submitted amicus — friends of the court — briefs.

Jeffery Mittman, executive director for the ACLU in Missouri, said the ruling essentially pits the religious rights of one person — or, in this case, a company — against the rights of others.

“This is really a very concerning decision, and in many ways, unprecedented,” he said. “The Supreme Court has never said before employers can use religious beliefs to deny employees benefits that the employees are guaranteed to receive by law.”

As a result of this decision, government benefits, which employees otherwise would be entitled to by law, will be denied, he noted.

Mittman noted the ACLU has long been on record defending individuals’ religious beliefs. The union fought for the right of a devout Christian high school valedictorian to include biblical verses in her yearbook and for a recovering addict to bring a rosary to a court-appointed drug-treatment program.

“Religious practices are very important. But here what’s happened is the court has allowed one individual — the employer — to impose his or her religious beliefs on another — the employee,” he said. “And that’s not religious liberty.”

But he added the justices’ decision is fairly narrow. “What the court did (on Monday) is they focused on the right of a closely-held corporation to make a RFRA claim,” he said.

That term, “closely held,” is important because it limits the ruling’s focus to companies owned by a small group, such as a family like the Greens.

Mittman said the challenge of balancing competing rights “is always difficult.”

But he noted that the ACLU prefers to use the First Amendment “as a shield to protect religious liberty against government interference” instead of using claims of religious liberty “as a sword to deny the rights of others.”

Left unchecked, a Muslim shop owner might someday use the claim of religious liberty to deny services to a Christian. A Christian might decline to serve Jews, he said.

“That’s not the American values we have. So it’s really important, when we look at religious liberty, to understand how the claims are being asserted and how the courts are looking at these beliefs,” he said. “Fortunately, we’ve seen that a majority of the public gets this.”

Even in states where Legislatures have assented to discrimination on the basis of sexual orientation, he said the vast majority of businesses have “stood up and said: ‘No. We are open for business.’”

He added: “In the end, American tradition says we all have many different political beliefs, many different religious beliefs, many different cultural beliefs. We understand those are protected in our personal dealings, in our families, in our churches and in our clubs. And when we go out into the marketplace … into common civil society where we all come together as Americans … we don’t impose our beliefs on anyone else.

“This decision will, hopefully, be a blip — an improper blip — in an American tradition of inclusiveness and getting along together,” he concluded.

M’Evie Mead, spokeswoman for Planned Parenthood in Missouri, decried the ruling as an act giving employers the right to discriminate against women by denying access to contraception.

“We feel it was a ruling against American women and families,” she said. “It is simply unbelievable that we are still fighting for access to birth control in the year 2014. Unbelievable,” Mead said.

Birth control is basic healthcare that millions of women use to treat a variety of conditions, including endometriosis, acne and pain, she said.

“Women are using birth control for basic healthcare that includes contraception, but also includes managing other health conditions. It needs to be covered in the context of health care coverage, just like any basic healthcare need,” she added.

Since no-copay birth control has been made available by the Affordable Care Act, some $30 million women have already saved $485 million in out-of-pocket health expenses in the last year, she said.

In their appeal, the Greens said they don’t oppose all contraception, only four kinds that they consider “abortifaceants,” such as IUD devices and Plan B drugs.

Mead said such thinking is fallacious.

“What the Food and Drug Administration labels as contraception … is contraception. What they label is abortion … is abortion,” she said.

She noted the Institute of Medicine also categorized the 20 drugs and devices similarly.

“They are medical professionals. That’s who we believe should be dictating healthcare and not religious-based makers of craft supplies,” she said.

Mead also noted, from a policy stance, increased access to contraception reduces the rate of abortion.

“It’s the single biggest public policy act we can do as a country to reduce abortion,” she said. “Giving 30 million women access to no-copay birth control as part of their insurance is a huge increase in access. Studies show removing that cost barrier — actually a very large study was done in St. Louis by Washington University — found when they removed the cost barrier, women chose more-effective, long lasting form of contraction and they reduced the rate of abortion significantly. And improved all sorts of other health outcomes.”

Mead wasn’t certain how many people the ruling might ultimately impact.

“At this point, it’s impossible to know how many companies fall under the category the court created,” she said.

MU Law Professor Carl Esbeck, an expert in church-state relations, said the court’s decision was “highly predictable” because so many of the justices tipped their hands during oral arguments and the government’s attorney was unable to adequately address several of the justices’ questions.

“The Solicitor General was standing there with his mouth open and nothing coming out,” Esbeck described.

From the perspective of Hobby Lobby and Conestoga Wood Specialities Corp., a party to the case, abortion is essentially the issue, he said.

“Roe v. Wade determined a woman has a right to end her pregnancy. And the court hasn’t waffled on that. But they’ve recognized that a huge part of America objects to that. And so Congress, time and time again, has passed bills saying, if you are a physician or a nurse, you can’t be forced by the government to do an abortion against your sincerely held religious beliefs,” he said. “This is not a great leap forward… it’s same old, same old,” Esbeck said.

Both Hawley and Esbeck believe the federal government was unable to show the ACA’s contraceptive mandate — that employers must furnish health care covering birth control — furthered a compelling governmental interest. Nor do they believe government was able to show it was the least-restrictive way to ensure women got this coverage.

Hawley noted the federal government has given numerous “waivers” to the ACA, some for economic reasons. He noted the Obama administration approved a religious accommodation that said churches didn’t have to comply with the regulation, nor do non-profits who hire and serve only people of their own faith.

“The administration has handed out so many waivers that half of America’s workforce isn’t covered by it,” he scoffed.

Because those exemptions had already been extended, there was no reason not to extend them to other religious groups, he argued.

One way for government to offer birth control in the least-restrictive manner would simply be to create a program for it. Esbeck noted it’s well-established in U.S. law that when people pay their federal income taxes, those monies go into the treasury, they are commingled and can be spent on programs that Congress deems important — even if those programs are unpalatable, or even considered evil, by some taxpayers.

“That’s not how the ACA works. It’s direct cause-and-effect. The (employer’s) money is going to contraception,” Esbeck said.

“One of the reasons the administration fought so hard is because they knew it would be the first major defeat to Obamacare,” Hawley told his Catholic listeners. “It will not halt the ACA nor make it hard to administer.

“But it is a symbolic defeat.”

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