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Showdown at the Supreme Court

American Life League

Daniel McInerny - published on 03/26/14

Aleteia expert Helen Alvaré and a lawyer for the plaintiffs take us inside yesterday’s oral arguments in a landmark case fighting Obamacare’s restrictions on religious freedom.

Oral arguments were heard yesterday at the United States Supreme Court in Sebelius v. Hobby Lobby, a case that will decide whether business owners maintain their religious freedom when they open a business.

Need to get up to speed on what’s at issue in the case? Read Aleteia contributor John Gerardi’s analysis here.

Hobby Lobby, which is resisting having to offer contraception and abortion-inducing drugs to its employees in accord with the HHS mandate attached to Obamacare, is being represented by the Becket Fund for Religious Liberty, a law firm based in Washington, D.C. After the oral arguments wrapped up yesterday, I had a chance to discuss how things went with Eric Baxter, senior counsel at the Becket Fund.

“The Court seemed to have a lot of concern about the government’s argument that family businesses cannot exercise religion,” said Baxter. “At one point the government was forced to concede that, under its theory, anyone starting a family business would forfeit their religious freedom. That would mean that if you want to be a kosher butcher, the government could force you to violate the laws of kosher. If you want to be a religious bookseller, the government could force you to sell materials that violate your religion. If you want to run your business in any way to comply with your religious conscience, the government could automatically disregard your religious freedom. That is an extremely skewed view of religious liberty. Americans should not be forced to give up their religious liberty just because they want to provide for their families.”

When I asked him about a common argument made by proponents of the HHS mandate, to the effect that corporations such as Hobby Lobby are not "persons" deserving of religious liberty, Baxter replied:

“The government conceded that corporations can be "persons" and exercise religion, since churches and religious nonprofit organizations are also corporations. The government also conceded that individuals can exercise religion through their businesses that are not incorporated. That makes it very difficult to follow their argument that, when you combine corporations and for-profit activity, religious freedom is somehow extinguished.”

Baxter further remarked that “the federal Dictionary Act expressly provides that the word "person" should include corporations wherever it is used in federal law, unless the law in question specifically indicates otherwise, which the 1993 Religious Freedom Restoration Act (RFRA) does not. Also, it is clear from legislative history that Congress clearly understands that RFRA protects corporations.”   

Aleteia expert Helen Alvaré, Professor of Law at George Mason University, agreed that RFRA defines the religious liberty of corporations quite clearly: “I was surprised at the amount of judicial questioning about how in the future courts would determine the contents of the conscience of a corporation. The legislative history of RFRA is quite clear about RFRA’s coverage of corporations.”

About other aspects of the oral arguments Alvaré went on to observe: “I was surprised about the persistence of the questioning from the bench about the supposed "parade of horribles" that would flow from recognizing corporate conscience. First and clearly, corporations have not been seeking to avoid civil rights laws on race or gender or disability on the grounds of religious free exercise. Second, should a corporation try this in the future, the courts have regularly evaluated whether the government has a "compelling state interest" in forcing a religious actor to comply with a law. It’s the bread and butter of judicial free exercise opinions.”

Alvaré was also “appalled” by Justice Kagan’s suggestion “that whatever "baseline" of entitlements Congress sets–requiring corporations to do X or Y as a new "right" for employees– would mean that any deviation from this baseline is a "loss" of benefits to employees, which might entitle the government to assert that it has a compelling state interest in giving women this benefit.”

“There’s no end to that argument,” insisted Alvaré. “Today it’s contraception and early abortifacients, tomorrow it’s all abortion, and the day after that it’s assisted suicide drugs for an aging population.”

The Supreme Court’s decision in the case is expected in late June.

Daniel McInerny is the editor of the English edition of Aleteia. You are invited to contact him at, find him on Facebook, and follow him on Twitter: @danielmcinerny.

ContraceptionPoliticsReligious Freedom
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