The Freedom From Religion Foundation, working with noted state-church attorney Marci A. Hamilton and groups advocating for the rights of victims of religious abuse filed an amicus brief Jan. 27, before the U.S. Supreme Court. The brief opposes Hobby Lobby’s claim that for-profit corporations have a right to deny contraceptive coverage to women workers based on religious objections.
The Hobby Lobby chain of stores argues that it is “a person” under the federal Religious Freedom Restoration Act (RFRA), and that the federal government’s contraceptive insurance mandate imposes a “substantial burden.”
Hamilton successfully argued before the U.S. Supreme Court in City of Borne v. Flores (1997) that RFRA was unconstitutional as applied to state and local governments.
In the amicus brief, Hamilton argues that the unconstitutionality of the federal RFRA “has been lost in the intense public debate between claimed religious liberty for for-profit corporations and women’s reproductive health.”
FFRF’s brief is also signed by Bishop
Accountability.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).
FFRF’s interest in the case arises from its position that “the radical redefinition of ‘religious freedom’ to include a right to impose one’s religious beliefs on others is arguably the greatest threat to individual freedom of conscience.”
FFRF notes that its original founders, Anne Nicol Gaylor and Annie Laurie Gaylor, formed FFRF “partly in response to unwarranted governmental and religious intrusion into a woman’s reproductive health decisions.”
Hobby Lobby was founded by David Green, who has a religious objection to some forms of prescription contraception, and essentially maintains his corporation has a soul and rights of conscience that trump the rights of conscience of his employees.
Green runs a chain of more than 500 craft stores and is challenging the contraceptive mandate of the Affordable Care Act. The law requires health care plans to provide coverage for certain “preventive care” at no additional charge, including immunizations, diabetes screening, AIDS screening and contraception.
“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.”
Hamilton writes: “RFRA lets religious citizens rewrite any federal law they don’t like, to their benefit.”
Oral arguments will be heard March 25. The 10th Circuit U.S. Court of Appeals ruled in favor of Hobby Lobby that corporations have the same (or stronger) religious rights as individuals.
However, the 3rd Circuit ruled against a similar challenge by another business that “for-profit, secular corporations cannot engage in religious exercise” and that a business owner’s religious rights do not allow that owner to impose his religion on his business’s employees.”
Conestoga Wood Specialties Corp., East Earl, Pa., is appealing that ruling, which will also be heard March 25.
RFRA is being “permitted to foment culture wars,” Hamilton writes, which violates the separation of powers, Article V and the Establishment Clause of the Constitution.
Hamilton holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and is the author of God vs. the Gavel: Religion and the Rule of Law.
“We find ourselves in the novel position, for once, of siding with the federal government, in this case Kathleen Sebelius, secretary of Health and Human Services,” commented FFRF Co-President Annie Laurie Gaylor. “Dogma must not be permitted to trump civil liberties in our secular republic.”