Nine U.S. Senators Say Hobby Lobby Is Protected from the HHS Mandate By Law

And a couple of Representatives from the House too. And which law might that be? The Religious Freedom Restoration Act, signed into law way back in 1993 by President Bill Clinton.

The Becket Fund has the details,

Washington, D.C. – Last night, nine U.S. Senators and two U.S. Representatives, along with the Oklahoma Attorney General and 11 other key groups, filed friend-of-the-court briefs supporting the Becket Fund’s challenge to the HHS mandate on behalf of Hobby Lobby Stores, Inc. The HHS mandate forces the Christian-owned-and-operated business to provide the “morning after pill” and “week after pill” in their health insurance plan or face crippling fines.

“While any brief by sitting members of Congress is significant, this one comes from members who originally supported the federal civil rights law—the Religious Freedom Restoration Act of 1993—which is at the heart of the mandate challenges,” said Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty. “The brief leaves no doubt that Congress intended to protect the religious freedom of those like Hobby Lobby and its founder, David Green, against federal attempts to force them to insure abortion-inducing drugs.”

The case is currently before the 10th Circuit Court of Appeals. A hearing could take place as early as this spring.

Signed by Senators Orrin G. Hatch, Daniel R. Coats, Thad Cochran, Mike Crapo, Charles Grassley, James M. Inhofe, Mitch McConnell, Pat Roberts, Richard Shelby and Congressmen Lamar Smith and Frank Wolf, the Congressional brief states:

“Congress plainly wrote [the Religious Freedom Restoration Act or “RFRA”] to include corporations[.]”

The federal government “may not pick and choose whose exercise of religion is protected and whose is not.”

The federal government’s “refusal to apply RFRA . . . turns the law of religious freedom upside down. RFRA places a heavy burden on Government and protects religion by default. But the HHS mandate places a heavy burden on religion and protects Government by default.”

An extraordinary example of bipartisanship, versions of RFRA were introduced by then-Senator Joe Biden, Senator Orrin Hatch and the late Senator Ted Kennedy, as well as then-Congressmen Chuck Schumer and Christopher Cox. It drew support from groups ranging from the ACLU, the Christian Legal Society, People for the American Way, the Southern Baptist Convention and Concerned Women for America. RFRA was signed in 1993 by President Bill Clinton.

In addition, 11 other key briefs were filed on behalf of Hobby Lobby stores, including the State of Oklahoma, the Christian Medical Association and the Archdiocese of Oklahoma City, to name a few.

Read the remaining briefs at the Becket Fund website.

Yes, yes, the courts will have the last say. But it never hurts to remind them about the importance of our first, most cherished, liberty.

  • Darren

    How do you feel about war tax resistance?

    How about Selective Service registration for conscientious objectors?

    Quakers have been fighting this battle, and loosing, for a very long time…

    • Frank Weathers

      I’m fine with Conscientious Objection. So is the Selective Service.

      Semper Fidelis

      • Darren

        Yes, thank you, knowing of your military service I am not surprised; the Selective Service fight is admittedly (IMO absurdly) minor, I should not have included it.

        The war tax resistance, though? That is a tougher nut I think. I will confess to mixed feelings on it myself.

        • Frank Weathers
        • Darren

          Yes, that would be an appropriate link. Perhaps the war tax protest is not the best example as it hinges upon whether or not an _individual_ should be compelled to comply with laws violating their religious convictions.

          Thank you for your replies. Though I may or may not agree with your position, I am curious about your thoughts and how you have arrived at that position.

          I am framing my question poorly; please allow me to try again.

          In the HHS / Hobby Lobby case, you would appear to be advocating for the extension of religious freedom rights to corporations. You would further appear to be advocating that corporations then be exempted from laws which the corporation / corporate officers / majority shareholders feel conflict with the corporations’ religious convictions.

          Is this, in your view, a proper extension of rights of conscience to corporate entities?

          Do you feel this should be a blanket extension, covering any corporation and any religious affiliation?

          How should such affiliations be determined, considering that with corporations we have independent legal entities? Should the corporation itself choose? Should it be based upon the personal affiliation of the majority shareholders? Should it be the same as the affiliations of the corporate officers? Must the corporation then declare its religious convictions along with other relevant business metrics (for example, within SEC filings)?

          Should a corporate religious conviction exempt the corporation from any particular law? If not, what limitations would you consider appropriate: OSHA, wage and hour, non-discrimination, taxes, EPA? Should a corporate exemption apply only to Federal laws, or would it extend to state and local laws?

          Thank you in advance for your thoughts.

          • Frank Weathers

            Darren, I doubt I can answer your question satisfactorily. From your framing though, we might as well try and make sense of the tax code, for example, and argue how rational it is that something that was originally simple, has morphed into a monstrosity riddled with loopholes that those with the capital, and the savvy, have the means to exploit. Certainly, by simply mentioning the tax codes’ swiss cheese-like hole-i-ness, the fact that exemptions can be devised, and applied, should be a proof that they can legally come about even in the case of the HHS Mandate.

            Bad law leads to bad workarounds.

            Regarding the HHS Mandate, my thoughts run along the lines of it being an unnecessary, and unconstitutional, violation of the First Amendment. But even if that is the case (or not, as the courts will decide based on the reasoned arguments of folks trained in the legal arts), I have stated before in previous posts that free choice on the part of the employee/ beneficiary needs to be enabled here. Drill it all the way down to the individuals’ freedom to choose the coverage, or not.

            So before the latest proposal from HHS in a post related to Hobby Lobby I wrote,

            Now, the HHS Mandate could be modified in the future to allow individual employees the opportunity to decide for themselves whether they need/want contraceptive, abortifacient, and sterilization services. You know, the HHS could provide a few options that would allow folks to make their own choices to do things contrary to the teachings of various faith groups. This would make things a lot less troublesome for businesses owned by folks who find these services objectionable. And, of course, folks like the Catholic Church, and her affiliated organizations. If people had a choice, see, they would be able to sin (or not) on their own time, and on their own dime, like we all usually do anyway.

            But that is not the case right now. The HHS, acting like we live in the 19th Century, can’t seem to summon the capacity to make a menu of options available to folks, despite our 21st Century capacity to do so.

            And the inability of folks to opt out of something that is already a)ubiquitous, and b)cheap (birth control pills) is one of the reasons the Church is not impressed with the latest accommodation proposal.

            And then there was the thought experiment I had recently.

            I hope this helps, as unsatisfactory as it is.

            P.S. Did I mention the harmful side effects of the pill, not just to women, but to all of us? :)