The US Supreme Court in November agreed to hear the cases of two Christian businesses (Hobby Lobby Lawsuit and Conestoga case) that object to being required by the HHS contraceptives mandate to include what they regard as abortifacient contraceptive services in their employee health plans.
Recall: churches are exempt from the mandate, and non-church religious nonprofits have been offered an “accommodation” (which many reject and which most courts have suggested provides inadequate religious freedom protections). But businesses, no matter what the convictions of the owners nor how far the companies have tried to operate consistent with a set of religious convictions-the administration has said that they do not have any religious rights and can have no escape from the mandate.
The Hobby Lobby lawsuit, involving a national chain of hobby stores and the Mardel chain of Christian bookstores, has gotten much publicity. There has been less public notice of the other case, brought by Conestoga Wood Specialties, a Pennsylvania-based Mennonite company.
Oral arguments in the Hobby Lobby Lawsuit are scheduled for March 25, with a decision by the court issued in June. The big question is this: are Christian-owned businesses such as these included in the religious exercise protections created by Congress in the Religious Freedom Restoration Act (RFRA)? RFRA passed Congress with almost no opposition and was proudly signed into law by President Bill Clinton in 1993, to restore strong protection for the exercise of religion by “persons,” reversing the weakening of such protections by the Supreme Court in a 1990 case (Employment Division v. Smith).
The federal government insists that RFRA does not apply to commercial organizations–that making money and exercising religion are two separate categories. Hobby Lobby, Conestoga, and many other companies have insisted that they do not and should not be required to leave their religious convictions behind in deciding how to operate a company designed to make money. So far, the courts have awarded injunctions lifting the mandate to 33 companies while ruling against 6. The Hobby Lobby Lawsuit, and Conestoga cases are the first contraceptives mandate cases the Supreme Court is taking up.
Of course, many religions include strong guidance on what is right and wrong in business dealings and many believers of various faiths are involved in commercial activities and regard their religious convictions to be relevant for how they conduct those activities–Hobby Lobby, for example, among other things, justifies by its religious convictions its high minimum wage rate.
For that matter, “secular” business leaders and businesses also drag ethical issues-views of right and wrong-into their activities: Ben and Jerry’s, for example, prides itself on particular social and environmental commitments, rejects genetically modified ingredients, and follows Fairtrade practices. After all, they are “a company on a mission.”
The Hobby Lobby lawsuit and Conestoga cases have drawn intense interest both from scholars and organizations that are convinced that people involved in business must be free to shape their business activities in line with their respective religious convictions and from other scholars and organizations that want commerce to be a religion-free zone, so that business owners and executives cannot “impose” their religious convictions on customers and employees, and for other reasons.
So the two cases produced at this week’s deadline a huge outpouring of amicus briefs, “friend of the court” statements weighing in in support of the two companies (56) or against them and for the government’s position (25). Those briefs are collected with some summary comments on a special Becket Fund webpage. Thank-you to Becket Fund!
Herewith some excerpts from just a few of the briefs supporting religious exercise in business:
State of Kansas files amicus brief supporting Hobby Lobby Lawsuit (Jan 31)
Church-State Expert Carl Esbeck for the National Association of Evangelicals:
The employers in these cases do not seek to force their employees to live by the employers’ moral and religious commitments. Conestoga and Hobby Lobby do not seek to legally bar their employees from purchasing abortifacient drugs and devices using their own funds or other resources.
The government does seek to legally force the employers to conform to its moral values. It would make the employers pay, with their own funds, for an earmarked employee benefit – a prepaid right to drugs and devices that the employers believe act as abortifacients. It is not even the case that the employers are buying a menu of benefits that the employee could spend either on these drugs and devices or on some other medical benefit. . . . The employers are asked to prepay for whatever contraceptive drugs are thought by the government to be beneficial for their employees.
Church-State Experts Douglas Laycock and Kim Colby for the Christian Legal Society, Association of Christian Schools International, The Association of Gospel Rescue Missions, World Vision, the Ethics and Religious Commission of the Southern Baptist Convention, and others:
In eighteenth-century Ireland, it was generally illegal for a Catholic to keep more than two apprentices. If your business grew to where you needed three apprentices, you were out of luck. Other laws imposed similar disabilities somewhat less directly. Anyone holding a civil or military office, or receiving pay by reason of a royal grant, or any school-master, barrister, solicitor, or notary, was required to take an anti-Catholic oath. These and other examples were recent history to the Founders.
If you take seriously the belief that a new human life begins at conception, and if your business grows to the point where you need to incorporate it, the government says you are similarly out of luck in this country. Violate your faith, or sell your business. The exclusion is imposed one step less directly than the English anti-Catholic oaths; it is imposed by a law that is claimed to be neutral and generally applicable. But that is no distinction; the very purpose of RFRA was to address substantial burdens on religious exercise imposed by neutral and generally applicable laws.
Church-State Expert Michael McConnell for the Christian Booksellers Association, Tyndale House Publishers, and others:
The government and its amicus supporters profess to think that there is something incongruous or even oxymoronic about the idea that a profit-making corporation might also pursue “a religious values-based mission.” . . . Without any actual historical evidence, they project their narrow vision of religious exercise onto the framers, and so into the protections of RFRA. But the framers were intimately familiar with corporations and other business forms that combined religious with profit-making purposes. . . .
It may be that a for-profit corporation does not “pray,” as the district courts below repeatedly intoned . . ., but it most assuredly may close its doors on the Sabbath, publish and disseminate materials spreading the gospel, conform its conduct to religious commandments, and refrain from facilitating what it regards as the taking of human life.
C12 Group (“a leadership-development company whose purpose is to counsel, train, and encourage Christian business leaders across North America who are seeking to run their businesses with excellence and in accordance with their Christian religious faith”):
In the government’s view, for-profit entities are fundamentally “different from religious non-profits” because their sole purpose is “simply to engage in commerce” and not to “perpetuate a religious values-based mission,” as not-for-profits may do . . . .
This statement is fundamentally wrong both as a matter of law and as a matter of fact. As a matter of law, a corporation’s ability to perpetuate a “religious values-based mission” does not depend on whether the corporation is organized as a for-profit or not-for-profit under state law, nor does it depend on whether the corporation meets the requirements for tax exemption under Section 501(c)(3) of the Internal Revenue Code. As a factual matter, C12 and the companies owned and operated by its members (and those of several similar organizations across America) are compelling examples of for-profit corporations whose missions are substantially, or even primarily, religious.
38 Protestant Theologians and Others:
The foundational principles of the spirituality of work apply to the clergy and laity alike, and the Christian doctrine of vocation makes no distinction between “sacred” and “secular” occupations. A particular calling is no less religious because the worker is paid or because the work is ordinary or mundane . . .
The inseparability of sacred and secular work is particularly relevant to the 82 million Americans who identify themselves as Protestant or as members of a Protestant denomination. . . . Historically, the Protestant Reformation of the 16th and 17th centuries brought about a revitalized view of vocation, wherein all work done in faith by God’s people was sacred, whether accomplished in the church and monastery or in the fields and courthouse. . . .
In sum, as a matter of longstanding and widely recognized Protestant Christian doctrine, all work-whether overtly sacred or seemingly secular-is spiritual activity ordained by God, and every believer’s vocation is a spiritual calling.
67 Catholic Theologians and Ethicists:
The Mandate imposes a substantial burden on the religious freedom of Catholic employers and other religious believers who object on religious grounds to providing insurance coverage for abortifacients, elective sterilization, and/or contraceptives, and for education and counseling designed to encourage the use of such services. This Court must defer to religious employers’ interpretation of their own religion, and must accept their conclusion that providing the objectionable insurance coverage would violate their religious principles, unless that conclusion is so bizarre or so clearly nonreligious in motivation as to warrant extreme judicial skepticism.
No such showing is possible in this case, because the employers’ unwillingness to comply with the Mandate reflects an eminently reasonable application of Christian religious principles.
IRFA, Colorado Christian University, Church of the Lukumi Babalu Aye, and others:
“[T]he Mandate violates neutrality because it applies differently to different types of religious conduct-selectively exempting (and thereby benefitting) certain religious objectors, while burdening others. “Religious employers [i.e., churches],” for example, are wholly exempted from the mandate. . . . On the other hand, objecting non-profits. . . may only be eligible for an “accommodation” that routes objectionable coverage through their insurer or plan administrator so that the nonprofit is not required to directly contract, arrange, or pay for such coverage . . . . Finally, for-profit religious objectors, like Hobby Lobby and Conestoga receive no exemption or accommodation at all. This violates the “minimum requirement of neutrality,” which is that a regulation must not “discriminate on its face.”
286 Legatus Members, the Breast Cancer Prevention Institute, and others(Legatus is an association of Catholic business executives):
The HHS Mandate substantially burdens the sincerely-held religious beliefs of Amici as well as the parties before this Court because it forces them to purchase health plans that include contraceptive drugs and devices, some of which are capable of ending the life of a human being at the embryonic stage of development. Under the Religious Freedom Restoration Act, the HHS Mandate can survive only if it is “in furtherance of a compelling governmental interest” – which the Government asserts here is its interest in expanding access to “preventive” health-care to promote women’s health.
Amici demonstrate that the HHS Mandate fails the “furtherance” test of any purported interest in preventive medicine because it increases risk of cancer and other serious disease instead of decreasing it.
Agudath Israel, Union of Orthodox Jewish Congregations of America, and others:
The two-edged limitation that the Government would place upon RFRA’s application in these cases can have a particularly harmful impact on Jewish Americans who observe Jewish ritual laws in operating individual or family-owned businesses. If the Government’s position in these cases is sustained, their religious observances may be hindered by government regulation simply because they are engaged in for-profit commerce and have chosen, for personal financial security, to operate their businesses in a corporate format. Neither the language of RFRA nor its legislative policy supports the abridgment of religious exercise that results from this crabbed reading of language that was intended to be a protective shield for the observances of devout Americans.
Democrats for Life:
[C]onscientious objections to abortion carry especially strong weight in American law because they fall within our tradition of protecting objectors from participating in actions that the objectors believe unjustly take human life-actions that include assisted suicide, abortion, capital punishment, and war. For this reason, although health-care conscience laws cover religious and moral objections to several procedures, protections for conscientious objection to abortion are particularly strong.
More specifically, laws protecting conscience rights for those objecting to abortion are not limited to individuals or to non-profit or religious organizations. Instead, the right not to facilitate or support abortions typically protects a wide range of objectors, regularly extending to individuals engaged in for-profit commerce and to for-profit businesses.
Original Signers of RFRA (Senators Hatch, Coats, Grassley, McCain, McConnell, Portman, and others, and Representatives Chris Smith, Frank Wolf, and others):
The government’s refusal to apply RFRA throughout the administrative process has resulted in a mandate that violates RFRA and turns the law of religious freedom upside down. RFRA places a heavy burden on the government and protects religion by default. But the HHS mandate places a heavy burden on religion and protects the government by default.
. . .
Even though Congress did not provide for different treatment of for-profit and non-profit employers in either RFRA or the PPACA [the health care law], the government has created a three-tier categorization of religiously objecting employers and has subjected for- profit corporations and their owners to third-class treatment in the lowest tier. This contravenes the design of RFRA. Congress knew that a healthy respect for religious freedom as exercised by a variety of actors would call for various government responses appropriate to the circumstances. But rather than attempt to formulate different principles to govern different categories of religious liberty claimants, Congress formulated a single principle and left it to government officials and courts to apply that same principle with sensitivity to different factual circumstances.
Other amicus briefs . . .
Additional amicus briefs defending the free-exercise rights of businesses were sent to the Supreme Court by the Christian Medical Association, the US Conference of Catholic Bishops, the Council for Christian Colleges and Universities, the Thomas More Society, Azusa Pacific University and the Evangelical Council for Financial Accountability and others, the Catholic Medical Association, National Religious Broadcasters, the Knights of Columbus, and many more.