English: Hobby Lobby store in Stow, Ohio

Hobby Lobby store in Stow, Ohio (Photo credit: Wikipedia)

On Tuesday the will begin hearing arguments in Sebelius v. Hobby Lobby that are likely to have significant ramifications for freedom of religion under the First Amendment. David and Barbara , the owners of Hobby Lobby, a nation-wide chain of more than 500 arts and crafts stores employing more than 13,000 people, run their business according to their Christian faith. Accordingly, among other things, they close those stores on Sundays.

When the ObamaCare mandate requiring health plans to provide contraceptives (like the morning-after pill and other devices that may cause early abortions), the Greens objected, according to their faith. They said:

The Green family's religious beliefs forbid them from participating in, providing access to, paying for, training for, training others to engage in, or otherwise supporting abortion-causing drugs and devices.

They filed suit and the Tenth Circuit Court of Appeals granted them a preliminary injunction, in the process issuing a sweeping decision in favor of the Greens. The court held that for-profit businesses, just like individuals, can engage in religious exercises and therefore, preliminarily, the ObamaCare mandate violates their rights under the First Amendment.

To add weight to its argument and its decision, it also said that the mandate violates an act passed nearly unanimously by the Congress and signed into in 1993 by then-President : the Religious Freedom Restoration Act, or RFRA. That law requires that “strict scrutiny” be used when determining whether the First Amendment has been violated. It also provided two exceptions, allowing abrogation of that amendment only in the face of the “furtherance of a compelling government interest” and only when that abrogation was the “least restrictive way” in which to accomplish that interest. RFRA defines “religious exercise” broadly as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

The only problem is that neither the First Amendment nor the RFRA defined exactly who may exercise those religious beliefs, and the Supreme Court, until now, has not directly addressed the issue as to whether for-profit corporations may do so, or not.

Norman and Samuel Hahn, the founders of Conestoga Wood Specialties in East Earl, Pennsylvania, have nearly the same beliefs, and the same concerns, as the Greens. It makes wood doors and components for kitchens and baths, and has seven factories in five states, employing about 2,100 people. Its wound up in the Third Circuit Court of Appeals, with a much different result. The court held that corporations are “artificial beings, invisible, intangible and existing only in contemplation of law” and as a result they could not exercise a “human right” like that guaranteed in the First Amendment. It also found, under RFRA, that the ObamaCare mandate did not substantially burden the Hahn's exercise of their religious faith.

In the Conestoga case, the court reached to the Supreme Court's decision in 2010, Citizens United, which held that, under the First Amendment, the federal government could not prohibit corporations from exercising their First Amendment rights by spending money for political purposes. Claiming that in Citizens United the court made no mention of exercising religious rights, then they were exempt from the ruling, and could not be used to defend the Hahns.

The court will be hearing arguments on both cases together on Tuesday.

More than 90 lawsuits have been filed over the ObamaCare mandate, with friend-of-the-court briefs offered in the case from numerous religious groups as well as 21 states and 107 members of the House and Senate.

Lawyers for Hobby Lobby and Conestoga are clear about what is at stake. Said Hobby Lobby's lead attorney, Kyle Duncan:

The filing demonstrates in no uncertain terms that the government's efforts to strip [the Green] family business of its religious rights represent a gross violation of the Religious Freedom Restoration Act and the First Amendment.

We are hopeful that the Supreme Court will uphold the 10th Circuit's strong affirmation of the Greens' rights to live out their deeply held beliefs in every aspect of their business.

Said Matt Bowman, a lawyer for Conestoga:

This case is entirely about whether the government can coerce families of faith to buy these life-destroying products and coverage for other people.

As an early indication of how the Supreme Court might rule in the case (due later this summer), in late January the entire court ordered an injunction against the government which was proceeding to harass the Little Sisters of the Poor for not signing onto the mandate. That injunction not only protected them but more than 400 other Catholic organizations. Prior to that decision, injunctions had been awarded to 18 other similar cases where plaintiffs had requested relief from the mandate.

Former Rep. Bart Stupak (D-Mich.) has weighed in on the side of the Green and Hahn families. Stupak, it will be remembered, caved in and sold out when pressured by President who promised to sign an executive order barring federal funding of abortion through ObamaCare. Stupak was the final vote needed in the House to pass the bill. Wrote Stupak:

As a private citizen, I'm proud to stand with the Green and Hahn families and their corporations, Hobby Lobby and Conestoga Wood, in seeking to uphold our most cherished beliefs that we, as American citizens, should not be required to relinquish our conscience and moral convictions in order to implement the Affordable Care Act.

If the court upholds the Tenth Circuit's decision, it will not fatally wound ObamaCare. But it will serve as another reminder, if one be needed, that the law is one more egregious attempt to override individual (and corporate) rights protected by the First Amendment and by Congress' clear as expressed in the Religious Freedom Restoration Act.

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