When the Affordable Care Act went into effect, it exempted religious organizations from having to fulfill the contraceptive requirement. In other words, if you were a pastor of a large church, you didn’t have to provide your employees with birth control if it went against your religious “conscience.”

The ACA did not offer the same exemption to public, for-profit companies owned by religious people — as well it shouldn’t have. Just because the owner of a huge company like, say, Hobby Lobby, is an evangelical Christian, why should he be able to withhold contraception from those who work for him? The company’s purpose isn’t to promote Christianity.

But Hobby Lobby’s CEO David Green felt he should be allowed to dictate the kind of health benefits his employees received and he took his case to court.

In November, the Supreme Court decided it would hear that case, deciding in essence whether corporations could be religious.

There is about more than just birth control (which Green unscientifically and ignorantly equates with abortion). If the Supreme Court rules in his favor, where would the line be drawn? What if a business owner was a Jehovah’s Witness who doesn’t believe in blood transfusions? Or a Christian Scientist who believed in the power of prayer over medicine? Would they get to force their employees, whose insurance comes through the workplace, to live by those rules as well?

Today, a group of 19 Democratic Senators filed a brief urging the Court to deny the Hobby Lobby exemption.

Their argument rest upon what they claim is a misinterpretation of the Religious

Freedom Restoration Act of 1993. RFRA protected the religious rights of individuals and religious groups, not corporations:

As the Tenth Circuit saw it, Respondents Hobby Lobby and Mardel are “persons” under RFRA. The court then found that the contraceptive-coverage requirement imposed a substantial burden on Hobby Lobby and Mardel because they must choose either to compromise their religious beliefs or to pay significant penalties for failing to comply with the Patient Protection and Affordable Care Act (Affordable Care Act). The court deemed the government’s interest in safeguarding public health and achieving gender equality not sufficiently compelling to justify such burdens. The Tenth Circuit’s decision runs afoul of both a plain-text reading of RFRA and RFRA’s extensive and informative legislative history. Congress passed RFRA to advance a single limited purpose: to restore the compelling-interest test to government actions that burden the free exercise of religion. The test Congress reinstated through RFRA — which was established and repeatedly articulated by this Court and others prior to RFRA — extended free-exercise rights only to individuals and to religious, non-profit organizations. No Supreme Court precedent had extended free-exercise rights to secular, for-profit corporations. Thus, in passing RFRA, Congress had no rational reason to anticipate, nor could it have contemplated based upon that well-established precedent, that a court would later choose to unilaterally extend RFRA’s protections well beyond those precedential bounds to secular, for-profit corporations.

Also today, a number of atheist and church-state separation groups filed friend-of-the-court briefs.

A joint brief filed by the Center For Inquiry, American humanist Association, American Atheists, Military Association of Atheists and Freethinkers, and the Institute for Science and Human Values sides with the government. They all agree that RFRA doesn’t extend to corporations. They also believe allowing this exemption would be a violation of the First Amendment

… Despite the ruling of the Tenth Circuit, courts may not simply take plaintiffs’ allegations of a burden at face value. Any burden that exists here is a purely self-imposed one created by the employer’s decisions made for purely business reasons which are unprotected by any constitutional right. Moreover, the alleged burden in this case is contingent on the independent decisions of nongovernmental third parties, that is, the decisions of employees who may or may not decide to use the forms of contraception to which the employers object. As this court has repeatedly found in Establishment Clause cases, actions of third parties cannot be attributed to the government… Fourth, any such exemption granted here could not be controlled without violating the First Amendment by preferring one religion over another, or religious belief, generally, over nonbelief. Any exemption would be followed by a series of further exemptions, as almost any medical procedure could be seen as violating the religious beliefs of one or more religious groups or sects.

In part, this brief argues that employers don’t really have any religious burdens placed on them because insurance is just a part of compensation. Just as a Mormon employer has no business stopping his employees from using their salaries to buy coffee, David Green shouldn’t be able to stop his employees from using their health insurance for contraception.

Americans United for Separation of Church and State along with nearly 30 other groups also filed a brief against Hobby Lobby:

The brief explains that RFRA was never meant to create religious freedom rights for secular, for-profit corporations. It asserts that RFRA should not be used to harm individual rights and says the law should be interpreted in a manner that takes into account the country’s growing religious diversity. Because the American workforce is increasingly religiously diverse, the owners of for-profit corporations should not be permitted to impose personal theological beliefs onto employees, the brief argues. The brief points out that many people have different religious beliefs about contraception than their employers. It argues that if the plaintiffs prevail “employees would find it more difficult to make personal decisions about healthcare and contraception in accordance with their own consciences.”

The Freedom From Religion Foundation also filed a brief cosigned by BishopAccountability.org, Children’s Healthcare Is a Legal Duty (CHILD), the Child Protection Project, the Foundation to Abolish Child Sex Abuse, Survivors for Justice and the Survivors Network of those Abused by Priests (SNAP).

“RFRA is being invoked in this case as a license for employers to influence their female employees’ contraception choices,” FFRF contends in the amicus brief. The amici also assert: “If Hobby Lobby can deploy RFRA to block coverage of women’s reproductive health, the next believer will argue against vaccinations, and the next against screenings for children or domestic violence screening and counseling. There is no limit to the variety of religious believers in the United States, and good reason to know that the vulnerable will pay the price.”

But get this: FFRF isn’t just saying that RFRA is being used in an unconstitutional way.

They’re arguing that RFRA itself is unconstitutional:

RFRA also accords religious believers extreme religious liberty rights that yield a political and fiscal windfall in violation of the clearest commands of the Establishment Clause in a long line of cases. Amici Curiae, who are united in their concern that RFRA endangers the vulnerable — who would otherwise be protected by the neutral, generally applicable laws of this country — respectfully ask this Court to hold that RFRA is unconstitutional once and for all, and to restore common sense to United States religious liberty guarantees.

If the Court agrees with FFRF’s brief, not only would Hobby Lobby (and other companies owned by religious people) have to treat employees fairly, but RFRA would be done away with for good.

Oral arguments for the case will be heard by the Supreme Court on March 25.

(Portion of this piece were used in a previous post. Image via Shutterstock)



