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Friday, Oct. 24, 2014

Hannah C. Smith: Beyond Hobby Lobby, the government's war on nuns rages

By Hannah C. Smith, Deseret News National Edition

Published: Wed, July 2 12:00 p.m. MDT

 Mother Patricia Mary walks in the chapel at the Mullen Home for the Aged, run by Little Sisters of the Poor, in Denver, Colo., Thursday Jan. 2, 2014.

Mother Patricia Mary walks in the chapel at the Mullen Home for the Aged, run by Little Sisters of the Poor, in Denver, Colo., Thursday Jan. 2, 2014.

(Brennan Linsley, Associated Press)

Last Monday, the United States Supreme Court ruled in Burwell v. Hobby Lobby in favor of arts-and-crafts chain Hobby Lobby in its challenge to a government rule under the Religious Freedom Restoration Act (RFRA). The devout Green Family, who owns Hobby Lobby, objected to the HHS Mandate, a regulation promulgated under the Affordable Care Act that requires all employers to pay for a variety of contraceptives including four drugs that they believe can cause an early abortion.

The Court decided two important questions in a decision authored by Associate Justice Samuel A. Alito, Jr. On the first question, by a vote of 5-2, the Court left no doubt that private, closely held, for-profit businesses like Hobby Lobby are protected by RFRA. Only Justices Ginsburg and Sotomayor dissented on this point.

On the second question, the court decided (5-4) that the HHS Mandate as it pertains to closely held for-profit businesses violates RFRA’s terms. Specifically, the mandate’s hundreds of millions of dollars in threatened fines “surely” creates a substantial burden on the exercise of religion here: “If these consequences do not amount to a substantial burden, it is hard to see what would.” And the Court made quick work of the government’s defense that the mandate is the only way to achieve its purported interests. The court straightforwardly stated that the government could pay for its own mandate and not force religious objectors to do so. Hobby Lobby and all other closely held for-profit businesses with a religious objection to the government’s HHS Mandate must receive an exemption under RFRA.

So what does the Hobby Lobby decision mean for the over 100 non-profit religious ministries that the government is still fighting in the lower courts trying to force the same HHS Mandate down on them? Religious ministries like Little Sisters of the Poor (an order of nuns caring for the elderly poor), Eternal Word Television Network (a Catholic media network founded by a cloistered nun) and Wheaton College (an evangelical college) continue to defend against the government’s overreaching HHS Mandate. Does Hobby Lobby offer them any hope?

The answer is unequivocally “yes.” In those cases, the government offered non-profit objectors (but not for-profit ones like Hobby Lobby) the so-called “accommodation,” which requires objecting religious non-profits to authorize a third party to provide the offending drugs as an alternative to providing them directly themselves. Many religious non-profits still find the “accommodation” objectionable. But, the Supreme Court did not decide whether that “accommodation” satisfies RFRA’s demands. The religious non-profits can draw hope from Hobby Lobby for three reasons: first, the court endorsed its order relieving the Little Sisters of the Poor from the “accommodation” as applying to “eligible organizations” (other non-profits); second, the court rejected the government’s “attenuation” argument; and third, the court said the government could pay for contraception itself. Let’s take each of these in turn.

First, the court noted that earlier this year it already granted the Little Sisters of the Poor a temporary opt-out from the “accommodation” pending their appeal in the Tenth Circuit Court of Appeals. In January, the Supreme Court permitted the Little Sisters of the Poor to notify the government that it is a religious organization that objects to the HHS Mandate. It need not sign any form authorizing third parties to provide abortifacients to its employees. In Hobby Lobby, the court gave a broad reading to that order as applicable to “eligible organizations,” (meaning other non-profits than Little Sisters of the Poor).

Second, the court rejected the government’s principal argument against religious objectors: “attenuation.” The government argued in both Hobby Lobby and in the non-profit cases that the connection between providing insurance plans offering abortion-inducing drugs and complicity in abortion is too “attenuated.” But the court stated that the complicity concern is a “difficult and important question of religion and moral philosophy” and that the government wrongly “[a]rrogate[es] the authority to provide a binding national answer.” Doing so, the court continued, would amount to the government finding that the Greens’ sincerely held religious objections are “flawed.” The court rightly refused to wade into this moral thicket. In the non-profit cases yet to play out, the government cannot claim that the “accommodation” it offers involves “just signing a form.”

Third, the court observed that the government itself could simply pay for the drugs and devices it seeks to promote. That fact undermines the government’s argument in the non-profit cases that the HHS Mandate is the least restrictive means to advance its goals. After Hobby Lobby, the government must explain in the non-profit cases why “[t]he most straightforward way of doing this” is not simply “for the government to assume the cost of providing” contraception directly.

The Hobby Lobby decision is a great victory for the Green Family who so courageously fought to preserve their right to run their family-owned business true to their religious convictions. And for the hundreds of remaining non-profit religious ministries who continue to resist this unfair HHS Mandate in court, victory is now three steps closer.

Hannah C. Smith twice clerked at the United States Supreme Court and is a member of the Deseret News Editorial Advisory Board. She is Senior Counsel at The Becket Fund for Religious Liberty, a public interest law firm that defends religious liberty for people of all faiths. The Becket Fund was counsel at the U.S. Supreme Court for the Hobby Lobby case and is counsel for Little Sisters of the Poor, Eternal Word Television Network and Wheaton College.

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1. The Real Maverick
Orem, UT,
July 2, 2014

Another war huh?

2. Hutterite
American Fork, UT,
July 2, 2014

Don't let success stand in the way of continuing to claim religious persecution.

3. patriot
Cedar Hills, UT,
July 2, 2014

Any victory over the enemy is noteworthy!!

4. GaryO
Virginia Beach, VA,
July 2, 2014

Patriot -

"Any victory over the enemy is noteworthy!!"

Who is the enemy "Patriot?"

People associated with Government?

Cops in Las Vegas?

Children at a public school?

Please be more specific.

5. FT
salt lake city, UT,
July 2, 2014

The media and politicans love these wars. The war on religon, the war on women, etc., etc. Just another chance to fire up and solicit an uninformed base.