Under both the Religious Freedom Restoration Act, as well as the Free Exercise Clause of the First Amendment, it’s difficult to see how you can force a company – which is, in the end, an extension of the people who run it – to provide services and products that violate sincere, profoundly-held beliefs. This is particularly so when the aggrieved employees have the freedom to either choose an employer who is willing to subsidize their birth control or, even better, pay for it themselves.
We know that the parade of horribles trotted out by the government to deny Hobby Lobby’s RFRA rights includes exactly the ones relied on by the Court in Employment Division v. Smith. By enacting RFRA, Congress plainly regarded the parade of horribles as imaginary. So we know that, as a matter of simple statutory interpretation, RFRA’s reach shouldn’t be stunted by the government’s Chicken Little act.
Oral arguments in Sebelius v. Hobby Lobby revealed a different, and genuine, parade of horribles that merits attention. Under questioning from Justice Kennedy, the Solicitor General was forced to admit that the Administration’s argument, if accepted, would mean that an abortion mandate could be imposed on for-profit corporations.
HHS claimed the power to make a religious exemption, but a narrow religious exemption of its own choosing—not a broad religious exemption designed to comport with the Religious Freedom Restoration Act enacted by Congress. That’s a deeply troubling result not only for those who care about religious freedom, but for those who care about our constitutional separation of powers.
From the Declaration of Independence through the Revolution, the Civil War through the civil rights movement, Americans have frequently been willing to fight back and assert their rights when overzealous governments tried to take them away. That’s still happening today. The owners of Hobby Lobby and Conestoga Wood Specialties took their turn recently, when their lawyers argued before the Supreme Court.