Today the Supreme Court is hearing arguments in two lawsuits against the federal government by family owned businesses who do not want to provide insurance coverage for contraceptives that cause abortions.
Generally, the case is about whether the federal government can force companies to do things that violate the conscience of the companies’ owners.
The legal questions are more precise:
- Do for-profit companies have a right to exercise religious freedom under the First Amendment or the Religious Freedom Restoration Act (RFRA), a federal law passed in 1993 that states the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability?”
- If so do, does the government have a compelling interest to restrict those freedoms in this case?
Historically, religious freedom has been something that has been protected in the United States. It unfortunately seems necessary to repeat the fact that the free exercise of religion is protected from government intrusion by the First Amendment to the constitution. It is literally the first freedom.
In 1990, the Supreme Court held that a law prohibiting Native Americans from using peyote in their religious ceremonies was legal because peyote was illegal for everyone, not just people who wanted to use it for religious purposes. In other words, because the law was generally applicable the burden on religious freedom was ok.
Congress was concerned because this made it easier for the government to restrict peole’s religious freedom. So in 1993 they passed RFRA, which said the government cannot restrict someone’s free exercise of religion unless there is a compelling government interest in doing so. This is a much higher standard. As a result, Native Americans could use peyote for religious purposes because the government could not demonstrate a compelling government interest in prohibiting it.
In the Hobby Lobby case, the Supreme Court will decide whether that high standard of religious freedom protection applies to a company as well as individuals. Can a business be religious? If the answer is no, it would effectively mean that individuals lose their religious freedom when they act as part of a for-profit corporation.
Interestingly, earlier this month the Fourth Circuit Court of Appeals, in Carnell Construction Corporation v. Danville Redevelopment and Housing Authority, said that a company can acquire a racial identity. In that case, an African-American owned small business in Virginia accused a local government of racial discrimination in violation of Title VI which protects people from discrimination on the basis of race.
Since a company can be African American, can it also be religious?If the Supreme Court decides that companies can claim religious freedom protections, the court would then have to decide whether the government has a compelling government interest in forcing employers to purchase abortion drugs for their employees.
In defense of the mandate, the government is arguing that such an interest exists. Even if they lose, as they should, the fact that the government is making that argument is a concerning sign of the times.
Whatever the outcome, a decision is not expected until June at the earliest. However, analysts will attempt to decipher which way the court is leaning based on the questions they ask.
There isn’t much to do to influence a Supreme Court decision, however, this is a good time to remind you that in a similar spirit Washington’s Attorney General, Bob Ferguson, is currently suing a grandmother in Richland, WA to force her to provide floral services for a same-sex wedding in violation of her beliefs about marriage.
If you’re wanting to do something to support religious freedom today, and you should, call Bob Ferguson at 360-753-6200 and respectfully ask him to drop the lawsuit against Arlene’s Flowers. Then ask your friends to do the same.
Our freedoms were won because people sacrificed greatly for them. Simply being disappointed won’t be enough to preserve them. Make the phone call even if you already have once. Be the delightfully, pleasant squeaky wheel that gets the grease.