Do You Lose Your Religious Freedom for Making a Profit?
Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius oral argument recap
The answer was clear as daylight, after hearing United States Solicitor General Donald Verrilli make his argument before the U.S. Supreme Court in the Hobby Lobby, Conestoga Wood religious liberty cases. Yes, the Obama Administration’s view is that once you “enter the stream of commerce,” you have no standing to sue under the Religious Freedom Restoration Act (RFRA).
JUSTICE STEPHEN BREYER: …take five Jewish or Muslim butchers and what you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the Freedom of Exercise Clause that’ you’d otherwise have…
SG VERRILLI: … once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for-profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere.
There you have it. It is an incredible admission by the government that should send chills down the spine of every freedom-loving American out there. The example of the Jewish or Muslim businesses was the result of Justice Samuel Alito’s highlight of a recent law in Denmark “prohibit[ing] kosher and halal slaughter methods because they believe that they are inhumane.” The government’s view is that a Jewish business could not challenge that law if it were passed in the United States, no matter their religious beliefs.
To Justice Kennedy’s surprise, the government also asserted the power to force companies to pay for abortions. But don’t worry, Verrilli promises the government would never use that power. Paul Clement, representing the Green (Hobby Lobby) and Hahn (Conestoga Wood) families addressed the issue on rebuttal:
CLEMENT: Let me start with the Abortion Conscience Clause. It’s because it tells you something about where Congress has drawn the line and it tells you the consequences of the government’s position. Historically, those conscious [sic] provisions have applied to all medical providers, including for profit medical providers. But we learned today that as far as the government’s concerned, that’s just Congress’ judgment. If Congress changes its judgment and says that a for-profit medical provider has to provide an abortion, RFRA doesn’t apply. That, with all due respect, cannot be what Congress had in mind when it passed RFRA.
Chief Justice John Roberts reminded everyone that that is exactly the case before the Court, because the government does not contend the notion that these four pills function as abortifacients as far as Hobby Lobby and Conestoga Woods is concerned.
But the “for-profit” distinction might just be a mirage, because SG Verrilli continued to insist, despite all evidence to the contrary, that they were “not drawing a line between non-profits and profits.” Does that mean he believes even non-profits have to endure the heavy hand of government with no recourse for their deeply held religious beliefs? We really don’t know the answer to the question because he continued to say that the government would never do that.
SG VERRILLI: No. No. Religious non-profits get an accommodation in which their employees get the contraception. But we are not drawing a line between for-profit and profit.
When the Court noted that that type of accommodation could be provided to for-profit corporations also, Verrilli said forcefully that Hobby Lobby and Conestoga Wood had never asked for such accommodation and in fact accused Paul Clement (several times) of inventing that argument for the first time at the podium that day. Clement delivered a heavy blow to the accusation on rebuttal by pointing out, with page-number specificity, that they had made that claim on their briefs filed long before oral arguments.
CLEMENT: I do want to get on the table that it is not true, that we have not suggested that the accommodation provided to religious employers, like non-profit hospitals, that’s not something I invented at the podium. If you look at page 58 of our brief, the red brief, we specifically say that one of the least restrictive alternatives would be the most obvious least restrictive alternative is for the government to pay for their favorite contraception methods themselves.
Later in that paragraph, the only full paragraph on the page, we say, “And indeed, the government has attempted something like that with respect to certain objective employers … objective employees employers,” and we cite the Federal Register provision where there is the accommodation provision.
Still, the government’s incredible argument found solace with the most radical members of the Court. Justices Sonia Sotomayor and Elena Kagan argued much better than SG Virelli for the government’s side. When the subject came up of the amazing benefits these families already provide for their employees, precisely because of their religious beliefs, Kagan was unmoved.
JUSTICE KAGAN: You know, I’m sure they seem like very good employers. And I’m sure they want to be good employers. But again, that’s a different thing than saying that their religious beliefs mandate them to provide health insurance, because here Congress has said that the health insurance that they’re providing is not adequate, it’s not the full package.
Clement for his part, pointed out the government’s hypocrisy on that point, for it has already exempted many other plans through the grandfathering of old policies.
CLEMENT: Well, with respect, what Congress has said is that this kind of plan is not appropriate for a non-grandfathered plan. But if we’re going to talk about the government’s compelling interests here, which I think has got to be part of the analysis, then I think the grandfathered provisions of this statute really are devastating for the government’s argument that it has a compelling interest.
That is a crucial point that the Court seemed receptive to.
CLEMENT: When the government pursues compelling interest, it demands immediate compliance. It doesn’t say, “Get around to it whenever it’s convenient.” I can’t imagine Congress passing Title VII and saying, “Stop discriminating on the basis of race, unless of course you have a pre-existing policy that discriminates on the basis of race, and then you can keep it as long as you’d like.” It is fundamentally inconsistent with a compelling interest…
It was a strong argument that should prevail when all is said and done. The implications of a loss for Hobby Lobby and Conestoga Wood cannot be overestimated. Let us continue to pray that the justices side strongly on the side of religious liberty on these important cases. A decision is expected by the end of June.
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