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9/2/2014 - Sept 2014 SLI Educational Update - Religious Freedom and the Hobby Lobby and Conestoga Wood Specialties Cases



 To:                  SLI Supporters                                  

 Date:               September 2014  

 From:              A. Eric Johnston

 Re:                  Religious Freedom and the Hobby Lobby and Conestoga Wood Specialties Cases

             Ever since the Affordable Care Act (“ACA”), a/k/a “Obamacare” was passed, there have been disputes over its impact on religious freedom.  While the ACA’s main objective was to socialize medicine in the United States, it also had the goal of expanding abortion rights.  As a consequence of the latter, it trampled on religious rights of pro-life business owners.

             The ACA exempted churches and certain religious nonprofit organizations from providing contraceptives and abortifacients.  However, it made no exception in its application to “for profit” businesses.  Hobby Lobby and Conestoga Wood Specialties are two small closely held for profit businesses owned by Christians who believe human life begins at conception.  The ACA’s requirement to provide contraceptives and abortifacients violated those sincerely held religious beliefs.

             Obama’s Department of Health and Human Services (“HHS”) took the position that a for-profit business, regardless of size, has no religious rights.  When the two cases finally matriculated to the U.S. Supreme Court, there was very heightened interest because it was expected to present far reaching decisions on religious freedom, abortion rights, and the iconoclast, otherwise known as the Obama Administration.  The opinion did what it needed to, but the cases fell short of our expectations.

             In a five-four decision applicable to both cases written by Justice Samuel Alito, the court based its opinion on the Religious Freedom Restoration Act (“RFRA”).  This law requires the federal government to have a compelling interest for any policy or law that burdens religion and then achieve that interest in the least restrictive way.  The court held that women’s health was a compelling interest, but requiring small businesses, run by persons with sincerely held religious beliefs, to violate those religious beliefs was not the least restrictive way of protecting women’s health.  After all, ACA had already made exemptions for churches and nonprofit organizations, providing women alternative ways to obtain contraceptives and other birth control.  Therefore, the ACA violates the RFRA and is unenforceable. 

 The Hobby Lobby and Conestoga decisions are important because they reinforce the importance of religious rights and, for the first time, clearly enunciated protection to small for profit entities and their owners.  It was important because it stopped Obama’s effort to diminish religious protection and therefore it is very important in principle and in protecting us from an overreaching federal government.  However, it does not support a larger or expanded protection of religious rights in other contexts. 

            Also, it did not expand abortion rights.  Justice Ginsberg grandiosely began her dissent with, “In a decision with startling breadth . . . ,” giving away the mediocrity of her reasoning.  She believes the abortion issue trumps religious freedom.  The dissent gives us an important insight into the four liberal Justices’ beliefs - they do not understand religion.  They said government must determine what is important, including what is a reasonable religious belief.  Religious objections are secondary to what the government requires.  This fallacious reasoning is at the heart of the problems we are facing in America today.  Religion is not important, only what the government decides is best for us is.

             How will these decisions impact same sex issues, as well as other religious rights issues that may arise in the future?  We were hopeful for a more far ranging decision.  While it is helpful, it may offer us little favorable precedent.  Justice Kennedy joined the majority, but wrote a special concurring opinion.  He joined in the religious protection language but observed that:

 “[A]mong the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.  Yet, neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.” 

             This sounds fine on its face, but keep in mind that Justice Kennedy is the Justice who has authored the three opinions establishing homosexual rights.  The rights he is establishing are and will be fundamental constitutional rights.  Any laws state legislatures or Congress pass or Obama orders protecting them will be deemed compelling.

 It is likely the RFRA will not apply when same sex court decisions are being made in the coming years.  Litigants will resort to other free exercise of religion clause and state religious protections.  There will be a clash between religious and same sex rights.  Any federal law passed to implement same sex rights will be subject to the Hobby Lobby and Conestoga decisions and that is good.  The RFRA will apply.  In other contexts, it will not and there remains much uncertainty.  Do not misunderstand us, we are happy with the Hobby Lobby and Conestoga decisions.  However, there are much rougher shoals ahead.   


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