FedSoc Blog

1993 Religious Freedom Act Is at Heart of Contraception Case

Avatar

by Publius
Posted November 25, 2013, 3:31 PM

According to the Los Angeles Times:

When the Supreme Court confronted the case of Native Americans who were fired for smoking an illegal drug during a religious ceremony, Justice Antonin Scalia called a halt to granting religious exemptions under the Constitution's protection for the "free exercise" of religion. It "would be courting anarchy" to permit "religious objectors" to ignore the law, he said.

But Democrats in Congress rose up to overturn his decision and to bolster religious freedom.

Backed by a broad coalition, including the American Civil Liberties Union and the Christian Legal Society, the Religious Freedom Restoration Act became law 20 years ago this month. It declared that the government may not "substantially burden a person's exercise of religion" unless it had a "compelling" reason to do so.

Now, that little-known law is at the center of a major "religious liberty" challenge to President Obama's health insurance overhaul and its requirement that employers pay for full contraceptive coverage for their female employees.

Christian employers have gone to court, citing the 1993 law and saying they have a sincere religious objection to providing "abortion causing" drugs such as the "morning after" pill. And they have won before the U.S. appeals courts in Denver and Chicago.

The appeals court judges relied on the Supreme Court's much-disputed Citizens United decision that said corporations have the same right as people to make political contributions; they concluded that "for-profit corporations" can be considered "persons" with religious beliefs.

"We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression," the 10th Circuit said in ruling for Hobby Lobby Inc., a nationwide chain of more than 500 crafts stores with 13,000 full-time employees. The company is owned by the Green family of Oklahoma City.

Obama administration lawyers appealed the Hobby Lobby case to the Supreme Court, calling the decision incorrect and unwise. The justices are likely to hear the case and may announce their decision to do so as soon as Tuesday.

"We are at a scary moment in our history if they say there is a constitutional right to shape benefits based on the religious beliefs of the owners," said Marci Hamilton, a Benjamin N. Cardozo School of Law professor and a critic of the religious freedom law. "Why isn't this discrimination against women based on gender and religion?"

If so, it will put a new spotlight on an old and recurring question: When and under what circumstances can people cite their religious beliefs to avoid complying with the law? And thanks to the 1993 law, it will give the court's conservatives, including Scalia, a chance to deal a blow to Obama's healthcare law. . . .

In November 2013, at the Federalist Society's National Lawyers Convention, Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit moderated a panel on Religious Liberties: Religious Liberty & Conflicting Moral Visions. Participating were:

  • Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty
  • Prof. William A. Galston, Ezra Zilkha Chair, Governance Studies Program, The Brookings Institution
  • Prof. Robert P. George, McCormick Professor of Jurisprudence and Director, James Madison Program in American Ideals and Institutions Department of Politics, Princeton
  • Prof. Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law

You can watch a video of the event here.

 

Search

Categories

Archives

Originally Speaking Debate Archive

Blog Roll