Thursday, March 27, 2014

Supreme Court hears religious freedom, contraceptives cases

Excerpted from "Supreme Court divided as it hears argument on contraceptive coverage," Washington Post, March 26, 2014 - A divided Supreme Court seemed sympathetic Tuesday to the views of business owners who say their religious objections protect them from a requirement in President Obama’s Affordable Care Act that health insurance plans cover all types of contraceptives. The conservative wing of the court seemed to agree that the challengers in the two cases — closely held corporations owned by families whose religious beliefs the government does not question — could be covered by a federal law that provides great protection for the exercise of religion.

So for the contraceptive requirement to apply to the companies, the government would have to show that it has a compelling interest in enforcing the requirement, that this does not impose a substantial burden on religious exercise, and that there is no less-intrusive way to provide coverage to female workers.

Justice Anthony Kennedy may have signaled a deeper concern when he raised the worry that the government’s reasoning would mean there was little that employers could object to funding. Kennedy told Solicitor General Donald B. Verrilli Jr. that under Verrilli’s view, a corporation “could be forced in principle to pay for abortions.” The court will render a decision in the cases — Hobby Lobby Stores vs. Sebelius and Conestoga Wood Specialties v. Sebelius — during its current term, which ends in late June.


Jonathan ImbodyCMA VP for Government Relations Jonathan Imbody – “These cases hold profound significance for our free exercise of religion, as guaranteed by the First Amendment to the U.S. Constitution and as advanced in a federal law, the Religious Freedom Restoration Act. The Christian Medical Association filed an amicus curiae (friend of the court) brief, available here.

“The cases hinge on several key principles:

  • Americans do not sacrifice their First Amendment freedom to exercise religious convictions once they launch a business (including a medical or dental practice). Consider, for example, that the New York Times corporation does not lose its First Amendment free speech rights simply as a result of incorporation; nor do incorporated churches lose their free exercise rights.
  • The government may only abridge the free exercise of religion when it can prove a ‘compelling interest.’ The fact that the administration has exempted millions of secular employers (though refusing to exempt many religious employers) undermines any government claim that the mandate is compelling. The lack of studies showing that pills such as ella and Plan B actually reduce unplanned pregnancies also undermines a claim of compelling interest.
  • Even when the government can prove a compelling interest to transgress religious liberty, it may only do so by the ‘least restrictive’ means available The least restrictive means of providing contraceptives would be for the government to directly provide them to women who cannot afford them, as it does around the world--not to force conscientious objectors to participate in the distribution.

“Many of my attorney colleagues who attended Tuesday's oral arguments at the Supreme Court felt guardedly encouraged. I attended a briefing at the U.S. Capitol in which similar optimism was voiced, based on the justices' line of questioning.

“If we win this decision, Christians gain a measure of protection against the increasing assaults on our religious freedom. If we lose, we can expect more fines, discrimination, job losses and even jailing as a result of growing animus toward the faith community and the increasingly counter-cultural values for which we stand. Even with a court victory, we still face the huge and more important task of winning an audience with our colleagues and our culture, to present the principles and claims of the kingdom and our King.


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