Editor’s note: Joshua Hawley, who teaches at the University of Missouri Law School, is on the legal team that will defend Hobby Lobby before the U.S. Supreme Court in March.
Joshua Hawley/associate professor of law
COLUMBIA – Just before Thanksgiving, the U.S. Supreme Court announced that it would decide the suit brought by Hobby Lobby, the national arts-and-crafts store whose owners are Southern Baptists, challenging what is sometimes called the contraceptive mandate. The mandate is a regulation issued by the Obama Administration as part of the Affordable Care Act that requires businesses of a certain size to include contraceptive coverage in their employee health plans. The problem for the Green family, who own Hobby Lobby, is that four of the contraceptive methods the government requires them to provide can cause an abortion.
Like many Christians, the Greens have no objection to contraception, but they are adamantly opposed to abortion. In their suit, the Greens and Hobby Lobby claim that federal law, including the First Amendment, prevents the government from forcing them to violate their faith by funding these drugs. Hobby Lobby is going to win this case.
Now I should say that I am an attorney for Hobby Lobby and it’s my job to be optimistic about these things. But I’ve seen plenty of cases where the plaintiff didn’t have a chance, and I can tell you, Hobby Lobby has more than a chance. Federal law and the First Amendment are on our side.
Here’s why. In 1993, Congress passed a law known as the Religious Freedom Restoration Act. That law requires the government to prove that any regulation which “substantially burdens” a person’s religious beliefs furthers a “compelling” government interest. In other words, if a law or regulation violates a person’s faith – and that includes people who own businesses, like the Greens – the government must show that the law is exceptionally important.
The contraceptive mandate unquestionably violates the Greens’ religious convictions. The Greens understand that abortion involves the taking of an innocent human life. As Christians, they can have no part of that. They certainly cannot in good conscience agree to provide their employees with drugs that can cause abortions. For these reasons, the law is a “substantial burden.”
Under the Religious Freedom Restoration Act, the government might still be able to force the Greens to comply if it could show that the mandate furthers a truly compelling government interest. But the government hasn’t shown that at all. In fact, the Obama Administration has exempted numerous businesses from this mandate for non-religious reasons – so many that the contraceptive mandate doesn’t apply to around 50 percent of the nation’s workforce. It’s hard to argue that forcing businesses to provide contraceptives to women is a compelling interest when the government has excused companies with millions of workers from doing it. What’s more, the Greens don’t object to providing most forms of contraception, only to four methods (out of 20) that might cause an abortion.
Some have argued that corporations like Hobby Lobby don’t have religious freedom rights. But the Religious Freedom Restoration Act says otherwise. That statute covers all “persons,” which it defines to include “corporations.” The government acknowledges this. Its argument is that the law does not include for-profit corporations. But the Supreme Court has already held that individuals who run for-profit businesses are entitled to manage them according to their religious beliefs. The idea that those entrepreneurs who choose to incorporate their businesses somehow forfeit their religious liberty rights makes no sense.
The form of the business shouldn’t matter. What matters is the right of business owners to run and manage their companies according to their faith. That’s a right our laws and above all, our Constitution, have long protected. The Green family should be lauded, not persecuted, for making their business about more than the bottom line.
When Hobby Lobby made these arguments to the federal court of appeals in Colorado earlier this year, the court agreed with Hobby Lobby. That is why the government is appealing the case now to the U.S. Supreme Court. The law and the Constitution protect Hobby Lobby. If the Supreme Court sticks to the law, Hobby Lobby will prevail.
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