This article was first published at The McAlvany Intelligence Advisor on Monday, March 24, 2014:
What’s at issue today at the Supreme Court is the battle between the state as god and God Himself. All the rest is details.
Under ObamaCare, the abortifacient mandate – what some are calling the anti-conscience mandate – requires employers to pay for coverage of contraception, sterilization, and abortion-inducing drugs in the health insurance offered to their employees. Some are seeing this for what it is: forcing people to pay for something that violates their religious principles.
These include David and Barbara Green, and Norman and Samuel Hahn, the founders of Hobby Lobby and Conestoga Wood Specialties, respectively. Their beliefs on the matter are nearly identical. Here’s how the Greens expressed their opposition:
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.
Each of them filed suit against the mandate and each case has wended its way up to the Supreme Court, which will hear opening arguments on Tuesday. The outcome is far from certain. If the Tenth Circuit Court of Appeals decision in Sebelius v. Hobby Lobby is upheld, then the mandate will be struck down. If the Third Circuit Court’s decision in Conestoga Wood Specialties v. Sebelius is upheld, it’s going to cost Hobby Lobby and Conestoga millions of dollars in fines. It’s also going to affirm that the state is now god in America and the First Amendment is dead.
Hobby Lobby operates more than 500 arts and crafts stores through the nation, employing more than 13,000 people. If the Third Circuit is upheld, the Greens will have but two unhappy choices: pay a fine of either $130 million (if they don’t honor the mandate) or $26 million if they drop their health insurance plan. For Conestoga, a much smaller company employing 2,100 people, the fines will be less but the outcome will be the same: both companies will be closed, or sold.
Lawyers for Hobby Lobby and Conestoga are clear about what’s 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.
Matt Bowman, one of Conestoga’s lawyers, said:
This case is entirely about whether the government can coerce families of faith to buy these life-destroying products and coverage for other people.
In the Tenth Circuit Court’s ruling in favor of Hobby Lobby, the decision was sweeping: their for-profit business, just like individuals, can engage in religious exercises and therefore, the ObamaCare mandate violates their rights under the First Amendment. Corporations are people, in other words, and entitled to those protections regarding speech, religion and so forth.
The court went on to say that the ObamaCare mandate also violated a law passed nearly unanimously by the Congress and signed into law in 1993 by then-President Bill Clinton: 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 obtain 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.”
In contrast, the Third Circuit Court held that corporations aren’t people and therefore aren’t covered by the First Amendment, and that RFRA doesn’t apply. 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.
These are just two of more than 90 similar lawsuits filed against the mandate. The Supreme Court decided to take a close look at these two to settle the matter. There have been hundreds of amicus curiae briefs filed in the case, including some from 21 states and 107 members of the House and Senate. Support has also come from a most unlikely source: the single member of the House whose vote for ObamaCare assured its passage back in 2009: the former Representative Bart Stupak, Democrat from Michigan.
It will be recalled that Stupak supported ObamaCare but didn’t want it to fund abortion, and so he and Republican congressman Joseph Pitts filed an amendment called the Stupak-Pitts Amendment which prohibited the use of federal funds “to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion.” Obama didn’t want that so he cut a deal with Stupak – which Stupak, to his everlasting discredit, accepted – that the president would issue an executive order to bar such funding.
As a private citizen [he announced in 2010 that he wouldn’t run for reelection], 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.
Although the Supremes won’t issue their decision until June or July, there are some positive indications that it will support the Tenth Circuit Court and reject the Third. 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.
If the court does the right thing, it won’t fatally wound ObamaCare. It will, however, be a reminder of just how thin the thread is that supports precious rights guaranteed by the First Amendment. The state wants to be god. It must remove all vestiges of God and His commandments from society in order to do so.
Heritage Foundation: Obamacare Anti-Conscience Mandate at the Supreme Court
The Economist: Obamacare and the first amendment
Political Ticker: Hobby Lobby asks Supreme Court for exemption to Obamacare mandate
World New Daily: Hobby Lobby gets day in Supreme Court
Washington Times: Hobby Lobby case’s First Amendment backing