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Protect religious freedom

| Monday, March 24, 2014

Today, the Supreme Court hears oral arguments to decide this question: Can the federal government force owners of secular, for-profit businesses to violate their personal religious beliefs and provide full contraceptive coverage to employees?
You ⎯ a past, current or future student at Notre Dame ⎯ should answer, “Yes.” Let me explain why.

In Hobby Lobby v. Sebelius, owners of Hobby Lobby, a private, secular craft store chain, believe the government mandate compels them to violate their religious beliefs by paying for health insurance coverage that includes full contraceptive coverage.
First, I will explain why this case is not really about the law promoting or protecting human life, but rather about financial obligation; therefore, one’s opinion on the case should not turn on one’s opinion of contraceptive use. Second, I will argue that a victory for Hobby Lobby and similar corporations is a loss for Catholic institutions like Notre Dame and Little Sisters of the Poor, which have a separate lawsuit against the mandate. If your interest is to protect human life and, as someone connected to Notre Dame, to protect religious organizations that aim to do the same, root against Hobby Lobby.

Note: Since the Supreme Court must only decide whether the contraception mandate is constitutional ⎯ not whether it is “good” or “bad” policy ⎯ view this argument in the context of the legal implications of a ruling in favor of either side, not on personal views of the mandate.

On the first point: Hobby Lobby’s owners sincerely believe in protecting the “sanctity of human life.” This I do not dispute. Lower courts in similar cases note that religious owners of these corporations sincerely believe the “termination of a fertilized embryo constitutes an ‘intrinsic evil and sin against God to which they are held accountable.’” However, Hobby Lobby’s owners do not argue against contraceptive use in this case ⎯ they “do not seek to control what an employee or his or her dependents do with the wages and healthcare dollars” and “do not consider themselves morally responsible for the choice of employees.”

Hobby Lobby’s owners only argue that the government cannot force them to directly provide contraceptive coverage; they acknowledge and claim no moral responsibility for an employee’s independent decision to use wages for contraceptive use.
The case is not about contraceptives ⎯ use occurs in both scenarios ⎯ it is about who pays for contraception, a critical distinction. One might argue that contraceptive use will decrease if paid for outside an employer-provided plan. However, this is question of policy, not law, and unnecessary as a constitutional issue.

In short, a ruling against Hobby Lobby does not denigrate the sanctity of human life before the law.
On the second point: What does a Hobby Lobby victory mean for religious institutions like Notre Dame? The Supreme Court will weigh Hobby Lobby’s claim through its religious freedom test: A government action “shall not substantially burden a ‘person’s’ (emphasis added) exercise of religion” unless it furthers a “compelling governmental interest.” Because Hobby Lobby is legally defined as a corporation ⎯ not a “person” ⎯ its owners must first establish the legally separate corporation as a “person” capable of exercising religion.

Keep in mind that debate over whether a “compelling” government interest in women’s health exists to justify a restriction of religious freedom does not begin unless Hobby Lobby clears the hurdle of establishing that a secular, for-profit corporation qualifies as a “person” for purposes of this case. If not, the rest is irrelevant.

The Court below the Supreme Court argued that Hobby Lobby indeed qualifies as a “person,” concluding: “As a matter of constitutional law, Free Exercise Rights may extend to some for-profit organizations.” This eliminates the special rights of religious nonprofit organizations like the Catholic Church — which the Supreme Court has classified as a “person” under the Religious Freedom Restoration Act.

Further, in a 2012 Supreme Court decision upholding a church’s firing of a woman on otherwise discriminatory grounds, Chief Justice Roberts declared that the First Amendment gives “special solitude to the rights of religious organizations.” The lower Court in Hobby Lobby v. Sebelius used cases like these ⎯ each brought by religious organizations ⎯ to grant secular organizations similar rights. By applying existing statutes for religious organizations to secular scenarios, such as Hobby Lobby’s case, a religious owner of a secular corporation is treated the same as an actual religious organization.

A Hobby Lobby victory would denigrate Catholic institutions like Notre Dame before the law, removing a key purpose of registering as a religious group in the first place. The Supreme Court could remove ⎯ for the first time ⎯ a fundamental distinction between religious and secular corporations. If Hobby Lobby wins its case against the HHS mandate, secular corporations and religious organizations will be incorrectly understood as synonymous in a court of law. Moreover, a Hobby Lobby victory would place the government in the business of deciding which for-profit corporations are “sufficiently religious” to receive religious protections traditionally granted only to religious organizations.

In sum, a Hobby Lobby victory is not a victory for the protection of human life. Instead, a Hobby Lobby victory is a serious loss for religious, nonprofit organizations like Notre Dame. For those who support Notre Dame’s lawsuit against the federal government: Cheer, cheer for Old Notre Dame, but root against Hobby Lobby.

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