U.S. Supreme Court Likely to Hear Appeal in Hobby Lobby Free Speech, Religion Case

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By Glynn Wilson

The Unites States Supreme Court is expected to agree on Tuesday to step into the morass once again and decide another signifiant case defining the boundaries between the First Amendment’s rights of free speech and religion.

Which is more important to a corporation? To be considered a “person” with full free speech rights? Or is it more important to deny people health insurance that includes coverage for controversial methods of contraception?

The corporate owners of a Christian crafts store chain, Hobby Lobby, are trying to have it both ways by suing the Obama administration over the federal mandates under the Affordable Care Act, claiming a federal mandate to cover employees, even for controversial contraception methods, is an unconstitutional violation of its rights not to have the federal government intrude on its rights to religious liberty.

David Green founded Hobby Lobby in Oklahoma City in 1970. He and his family own the chain of stores through a privately held corporation. It now has more than 500 stores and 13,000 employees.

Because it claims to be a Christian store, it closes on Sundays, plays religious music, and employees even get free spiritual counseling. But they do not get free insurance coverage for some contraceptives, even though the national health care law requires it.

A federal appeals court ruled in Hobby Lobby’s favor, and the Supreme Court is expected to decide on Tuesday that it will hear the Obama administration’s appeal from that decision, or appeals from related cases.

Legal experts say the court is all but certain to step in, setting the stage for another major decision on the constitutionality of the Affordable Care Act two years after a closely divided court sustained its requirement that most Americans obtain health insurance or pay a penalty.

“The stakes here, symbolically and politically, are very high,” Douglas Laycock, a law professor at the University of Virginia, told the New York Times, citing the clash between religious teachings and the administration’s embattled health care law. He said only one thing was certain about the issues presented in the case, Sebelius v. Hobby Lobby Stores, No. 13-354.

“They’re almost sure to take it,” he said of the Supreme Court. “And no one has any idea how it’s going to come out.”

“This is a perfect storm,” Richard Garnett, a law professor at Notre Dame, also told the Times, adding that it is also a worrisome one. “Debates about campaign finance in Citizens United and abortion and Obamacare,” he said, “could distort the court’s analysis of religious freedom.”

In weighing and trying to balance the interests involved in this case, the Supreme Court would have to assess the limits of Citizens United, in which a majority ruled that corporations are “persons” under the law and thus have free speech rights under the First Amendment. Are corporations also entitled to religious liberty under the First Amendment? That is the question.

In ruling for Hobby Lobby, the U.S. Court of Appeals for the 10th Circuit in Denver, Colorado, said it had applied “the First Amendment logic of Citizens United.”

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy M. Tymkovich wrote for the majority.

Chief Judge Mary Beck Briscoe, a dissenting member of the court, wrote that the majority’s approach was “nothing short of a radical revision of First Amendment law.”

Judge Harris L Hartz, in a concurrence with the majority, said the case was in some ways easier than Citizens United. “A corporation exercising religious beliefs is not corrupting anyone,” he wrote.

Among Hobby Lobby’s lawyers, Paul D. Clement, led the 2012 Supreme Court challenge to the health care law. The new case opened another front in a larger war on the law, which he argues in the Supreme Court brief: “imposes massive obligations on individuals and corporations alike in the process of attempting to fundamentally reorder the nation’s health care system.”

Solicitor General Donald B. Verrilli Jr., Clement’s main adversary in the 2012 case, told the justices that the 10th Circuit’s “unprecedented ruling” in this case would allow “for-profit corporations to deny employees the health coverage to which they are otherwise entitled by federal law, based on the religious objections of the individuals who own a controlling stake in the corporations.”

The Supreme Court is generally receptive to appeals from the solicitor general, according to the Times, “especially when a lower court has effectively held a federal law unconstitutional.” The justices are also apt to step in when, as here, lower courts are divided on an important legal question.

Even Hobby Lobby, which won in the appeals court, agrees that the justices should hear the administration’s appeal.

In the company’s brief, they point out that some drugs and devices that can prevent embryos from implanting in the womb are tantamount to abortion and argue that providing insurance coverage for those forms of contraception would make the company and its owners complicit in the practice. They said they had no objection to 16 other forms of contraception approved by the Food and Drug Administration, including condoms, diaphragms, sponges, several kinds of birth control pills and sterilization surgery.

Hobby Lobby’s failure to agree to offer comprehensive coverage could subject it to federal fines of $1.3 million a day. Dropping insurance coverage for its employees, according to the appeals court, could be disruptive and unfair and lead to fines of $26 million a year.

But arguing for the Obama administration, Mr. Verrilli made the case that requiring insurance plans to include comprehensive coverage for contraception was justified by the government’s interest in “the promotion of public health” and in ensuring that “women have equal access to health care services.” Doctors rather than employers should decide which form of contraception is best.

Yet many religious organizations are exempt from the law’s requirements already, which the approval of the administration. It has grandfathered in some insurance plans that had not previously offered the coverage. Small employers are not required to provide health coverage at all.

A federal judge in Tampa, Florida estimated in June that a third of Americans are not subject to the requirement that their employers provide coverage for contraceptives.

But the administration wants to draw a line at larger, for-profit, secular corporations.

“Congress has granted religious organizations alone the latitude to discriminate on the basis of religion in setting the terms and conditions of employment, including compensation,” the Justice Department told the 10th Circuit Court of Appeals. “No court has ever found a for-profit company to be a religious organization for purposes of federal law. To the contrary, courts have emphasized that an entity’s for-profit status is an objective criterion that allows courts to distinguish a secular company from a potentially religious organization, without conducting an intrusive inquiry into the entity’s religious beliefs.”

The appeals court disagreed, however, ruling that Hobby Lobby is a “person” for purposes of the relevant federal law, the Religious Freedom Restoration Act of 1993.

Judge Tymkovich wrote that religious liberty cannot turn on whether money changes hands. “Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” he asked.

After finding that Hobby Lobby was entitled to the law’s protections, the 10th Circuit went on to say that the company’s sincere religious beliefs had been compromised without good reason, noting the limited number of contraception methods at issue and the many employers exempt from the law’s requirements.

Other federal appeals courts considering challenges to the health care law’s so-called contraception mandate have ruled that the 1993 law does not apply to corporations. How this high court rules will no doubt have profound impacts on free speech and religious rights in the future, as well as the future of public health in America.

© 2013 – 2016, Glynn Wilson. All rights reserved.

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