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A Behind-the-Scenes Look at Hobby Lobby Legal Preparation

Lori Windham

Mark Stricherz

Mark Stricherz - published on 06/30/14

Attorneys discuss evolving case and its implications for non-profits.
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WASHINGTON — Minutes after the Supreme Court announced its decision in Burwell v. Hobby Lobby, Carrie Severino found herself being interviewed a few feet beyond the court’s white marble steps on national television. Severino is the chief counsel and policy director for the Judicial Crisis Network, and she acts as if fellow  pro-lifers need to be careful of the words they use.

"This is a narrowly tailored decision. The court said you can’t force people to violate their religious freedom," Severino told reporter Terry Moran of ABC News.

Yet Severino, who filed a friend-of-the-court brief in the case, told Aleteia the ruling could have broader implications for religious believers. The decision may allow sole proprietors to refuse to provide to their employees the abortifacient and sterilization procedures that the Affordable Care Act requires of health-insurance plans. "I’m not sure how it’s going to affect those. Certainly it creates a great opportunity to do just that," Severino said.

Lori Windham, a lead attorney in the case for the Becket Fund for Religious Liberty, struck a note similar to that of Severino. "The case is limited to family-owned corporations," Windham said in an interview outside the Supreme Court Monday morning.

Windham and Severino’s use of the religious press to encourage religious businesses to apply for an exemption from Obamacare’s controversial mandate was no accident. Their words typified the prudential, hard-fought nature of the victory for supporters of the decision.

One after another female pro-life speaker from Americans United for Life, Students for Life, the Catholic Association, and Young Americans for Freedom, stepped up to a dark wooden podium to hail the court’s ruling in front of a few hundred sympathizers and scores of opponents on First Street SE Monday morning. One after another female attorney who represented or supported the victors in the case addressed the media. Paul D. Clement, the male attorney who argued the case for the plaintiffs before the nine justices, was not available for interviews. Mark Rienzi, a senior legal counsel to the Becket Fund, was slightly less scarce to reporters Monday.

"This is one of the most significant pro-life victories for a generation," Cathy Cleaver Ruse, senior counsel for legal studies at the Family Research Council, told supporters waving professionally-made placards. "This decision said the Obama mandate went too far. This is a day for women to celebrate! Thank you, Supreme Court, for standing up for women in business."

The plaintiffs in the case were Hobby Lobby, an Oklahoma-based arts-and-crafts retail store, and Conestoga Wood Specialties, a Pennsylvania-based cabinet making firm. Both are owned by religiously devout families. 

They argued they should not have to provide to their employees four government-mandated, abortifacient drugs—the morning-after pill, the week-after pill, Plan B emergency contraception, and intrauterine devices—that can kill a tiny unborn child after conception has occurred. The high court’s ruling allows family-owned corporations to not provide those drugs and procedures to their employees.

The defendant in the case was Sylvia Burwell, the secretary of the Department of Health and Human Services, who succeeded the woman who oversaw implementation of the policy, Kathleen Sebelius. Donald Verrilli, the solicitor general of the U.S., argued that allowing some organizations to opt out of the contraception mandate jeopardized women’s health. The government’s case equated artificial birth control to health vaccinations.

Socially liberal protestors agreed. "Ho ho, hey hey, birth control is here to stay!" young activists chanted as the last of the female pro-life speakers addressed the crowd in front of the court.

While Cleaver Ruse hailed the ruling as a milestone for pro-lifers, the decision did not come easily. The original case ended in a loss.

Lawyers for the Becket Fund filed a lawsuit in the U.S District Court in the Western District of Oklahoma in September 2012. Their side came up short.

Windham (pictured) said she discovered the lower court had ruled against Hobby Lobby over the Thanksgiving holiday week while she, her husband, and two-year-old daughter were staying at a hotel in Baltimore. While the two of them were asleep, Windham said, she tapped out a response on her laptop computer and filed an appeal electronically to the 10th Circuit Court of Appeals.

The appellate court ruled in favor of Hobby Lobby last year. After spending hundreds of hours in preparation for the case, Clement argued before the nine members of the high court on March 25.

In tandem with Clement and nine other members of the Becket team, Windham said they devised two key arguments. "Religious people don’t lose their rights to religious freedom when they form a company," Windham said. "Corporate entities have rights—churches and mosques—just as the government was saying non-profit companies have rights."

On Monday morning, Windham was in the basement of the Suprme Court with some lawyers from Becket. She had her iPad out and was sipping a Diet Coke when she heard the news that her side had won. The lawyers exchanged handshakes, smiles, and congratulations. Windham walked out of the Supreme Court, down its steps, and addressed reporters and activists outside.

The effect of Windham, Rienzi, and Clement’s work on Catholic hospitals, universities, and social-service agencies that vowed to defy the Obamacare mandate is unclear. But the high-court’s 5-4 ruling gives the Catholic institutions more leeway than if the decision had gone the other way.

By mid-afternoon, the Becket Fund was able to issue a press release regarding another client, the Eternal Word Television Network (EWTN), which was granted last minute relief from the Eleventh Circuit Court of Appeals. The stay came one day before the network, founded by Mother Angelica to spread the teachings of the Catholic Church, would be forced to violate its deeply help religious convictions or pay crippling fines to the IRS. 

“On the same day as the Hobby Lobby decision, the Eleventh Circuit protected religious ministries challenging the same government mandate,” said Windham. “It’s time for the government to stop fighting ministries like EWTN and the Little Sisters of the Poor, and start respecting religious freedom.”

To date, the Becket Fund says, 80% of HHS legal challenges have resulted in favorable rulings supporting religious freedom. There are currently 100 lawsuits challenging the mandate.

PoliticsReligious Freedom
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