Brief says Hobby Lobby puts RFRA on trial

Lawyers say forcing business owners to violate their deeply held religious beliefs or pay steep fines “is one of the most straightforward violations of the Religious Freedom Restoration Act this court is likely to see.”

By Bob Allen

The Southern Baptist owners of Hobby Lobby claim in a Supreme Court brief filed Feb. 10 that mandated coverage of contraceptives under Obamacare is a textbook violation of a 1993 law enacted with broad support to prevent the government from interfering in a person’s religious exercise.

Lawyers representing members of the Green family, who attend Council Road Baptist Church in Bethany, Okla., say forcing business owners to violate their deeply held religious beliefs or pay steep fines “is one of the most straightforward violations of the Religious Freedom Restoration Act this court is likely to see.”

RFRA, passed in 1993 with backing of a broad coalition including the Baptist Joint Committee for Religious Liberty, prohibits the government from “substantially” burdening a person’s religious exercise without a compelling governmental interest and by the least-restrictive means.

The Obama administration argues that Congress’ intent was to protect religious freedoms of individuals and not large corporations like Hobby Lobby, a nationwide chain with over 500 stores and more than 13,000 full-time employees with various religious beliefs.

Lawyers say the Greens, who organize their business with “express religious principles in mind” and policies including fair wages and closing Hobby Lobby stores on Sunday, exercise their faith through their business and nothing in the law says RFRA doesn’t apply to them.

They claim the White House undermines its own “compelling interest” claim by voluntarily exempting millions of Americans from rules of the Affordable Care Act if they have fewer than 50 employees or insurance plans that are grandfathered. HHS regulations also exempt certain types of religious employers that object to birth control on moral grounds.

They also dispute the government used the “least restrictive” means to achieve its interest of providing contraceptive coverage at no cost as part of preventive medical services provided by Obamacare.

“There are literally thousands of ways for the government to advance general interests in promoting public health and gender equality without implicating Respondents’ religious exercise,” the brief argues. “The conflict here arises only because the government has chosen the hardly obvious path of forcing Respondents to pay for religiously-objectionable drugs and devices.”

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty and counsel for Hobby Lobby, said the latest brief “brings into even sharper focus the issue at the heart of this landmark case.”

“No one should be forced to give up their constitutionally protected civil rights just to go into business,” Duncan said. “The filing demonstrates in no uncertain terms that the government’s efforts to strip this family business of its religious rights represent a gross violation of the Religious Freedom Restoration Act and the First Amendment. We are hopeful that the Supreme Court will uphold the Tenth Circuit’s strong affirmation of the Greens’ rights to live out their deeply held beliefs in every aspect of their business.”

The latest Hobby Lobby brief comes on the heels of another filed Jan. 27 asking the high court to declare RFRA unconstitutional. Before that the Southern Baptist Ethics and Religious Liberty Commission joined other groups in a brief claiming a person’s religious exercise is protected whether or not that person owns a business.

hollyn-hollmanHollyn Hollman, general counsel of the Washington-based Baptist Joint Committee, wrote in the January 2014 Report from the Capital that the religious-liberty watchdog coalition representing Baptist groups including the Cooperative Baptist Fellowship isn’t weighing in on the specific legal question before the Supreme Court — whether RFRA applies only to individuals or also to corporations — but “continues to support the strong standard RFRA embodies.”

“As in other religious liberty cases to reach the Supreme Court, the BJC has an opportunity to weigh in on this case,” Hollman said. “For us, however, the particular religious claim is less important than the need to advocate for strong standards that protect religious liberty for all.”

“It matters much less which religious group or governmental entity we are aligned with in a case (indeed our history shows cooperation with groups across the theological and political spectrums) than that strong legal principles are maintained that protect us all,” she wrote.

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