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On Hobby Lobby and Conestoga Woods: Key Excerpts

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I will be discussing the wonderful Hobby Lobby decision upholding religious liberty and assuring every federal court in the land understands that the Religious Freedom Restoration Act applies to closely-held corporations and not-for-profits  (and thus churches organized using the corporate model and thus church-related charities and schools) that object on religious grounds to providing birth control on today’s show.

Don’t let anyone tell you it is “narrow” in part, or that that the Obama Administration will strike again.  As to the former it is not.  Justice Ginsberg called it a “decision of startling breadth,” and it is, providing a stinging slap to Obamacare’s overreach into the religious beliefs of a free people.  As for whether the president and his team will continue to try and invade the conscience rights of a free people, of course it will, but that’s why this November’s election will be so crucial and why today’s decision a major victory in a never-ending struggle to preserve religious liberty. Some key graphs from Justice Alito’s opinion: 13-354 Burwell v. Hobby Lobby Stores, Inc. (06/30/2014)

In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies for- feited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprie- torships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not dis- criminate in this way against men and women who wish to run their businesses as for-profit corporations in the man- ner required by their religious beliefs….

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An estab- lished body of law specifies the rights and obligations of the people (including shareholders, officers, and employ- ees) who are associated with a corporation in one way or another. When rights, whether constitutional or statu- tory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government sei- zure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies….

While it is certainly true that a central objective of for- profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitar- ian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy- conservation measures that go beyond what the law re- quires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well….

In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government— that dropping insurance coverage eliminates the substan- tial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sin- cerely held religious beliefs or making all of their employ- ees lose their existing healthcare plans….

In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forc- ing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 32–35. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. 494 U. S., at 888– 889 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §2000bb(a)(5). The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.

And from Justice Kennedy’s concurrence:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.

13-354 Burwell v. Hobby Lobby Stores, Inc. (06/30/2014)



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