- The Washington Times - Sunday, March 23, 2014

Obamacare is on the docket Tuesday in one of the biggest religious freedom cases to hit the Supreme Court in years, as the justices hear from corporate owners who say their personal beliefs should trump a government mandate that requires their company health care plans to insure birth control.

From the start, everyone involved in the dispute over the Obama administration’s “contraception mandate” seemed to realize the issue would end up before the high court. The politically loaded saga prompted dozens of lawsuits, split the appeals courts and raised questions about whether a secular, for-profit company could exercise religious rights.

The cases before the court deal with the for-profit camp of plaintiffs. Unlike nonprofit employers, for-profit companies have not been given any relief from the mandate and say they are presented with an impossible choice: either violate their beliefs or pay crippling fines for flouting the mandate.

“The administration has effectively told the Supreme Court that for-profit companies have no right to act on moral convictions the government opposes. They are about profits,” Joshua Hawley, counsel for the Becket Fund for Religious Liberty, wrote in a recent op-ed for USA Today. “That position is deeply mistaken.”

The Supreme Court consolidated two cases for Tuesday’s arguments, with each side chalking up a win at the circuit court level.

Hobby Lobby, an Oklahoma-based crafts supplies company, found favor before the 10th U.S. Circuit Court of Appeals in Denver last summer, but the government trumped Conestoga Wood Specialties — owned by Mennonites in Pennsylvania — before the 3rd Circuit in Philadelphia.

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In the Pennsylvania case, “the court holds that corporations lack religious liberty rights, and the company’s owners are not affected because they are not required to do anything under the contraception rule — the rule runs against the corporation,” said Brigitte Amiri, a senior staff attorney at the American Civil Liberties Union, which has supported the government’s position.

“The 10th Circuit’s decision answers the threshold question in the opposite manner — that corporations do have religious liberty rights and their owners’ rights are implicated too,” she said.

Now, it’s up to the justices to fulfill their role as the ultimate arbiter.

The questions before the court focus on two key areas — whether corporations have a constitutional right to the free exercise of religion, and whether a 1993 law backed by both parties in Congress and signed by President Clinton was designed to insulate religiously devout owners from laws and government mandates like President Obama’s.

The circuit court decisions leading up to the Supreme Court arguments offer starkly different views of whether the religious rights and protections regularly afforded to individuals should extend to for-profit corporations.

The 10th Circuit pointed to Citizens United v. Federal Election Commission, the 2010 Supreme Court case that allowed corporations to spend millions of dollars on campaign advertising through super PACs, citing their rights to free speech.

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“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” the majority wrote in the 10th Circuit decision.

The court also held that Hobby Lobby, owned by the Green family, should be shielded by the Religious Freedom Restoration Act of 1993 because it would be “substantially burdened” by the government’s mandate. The court said Congress did not appear to differentiate between individuals and for-profit entities when it enacted the law.

Meanwhile, the Obama administration and its supporters have defended the rule as a women’s health issue. They say an adverse ruling from the court would dramatically recast the extent to which secular for-profit entities can incorporate religious beliefs into their businesses operations.

“Our constitutional traditions have always recognized a basic distinction between religious bodies and secular business, even when, as in these cases, those businesses are operated by devout individuals,” said David Gans, civil rights director at the Constitutional Accountability Center.

The outcome of the contest before the court is considered a tossup by many analysts. It is so hotly contested that even punctuation is playing a role.

Before the 3rd Circuit, Conestoga contended that the Citizens United case entitled it to greater protection because the First Amendment’s clauses on free speech and the free exercise of religion are separated by a semicolon, suggesting continuity.

“We are not persuaded that the use of a semi-colon means that each clause of the First Amendment must be interpreted jointly,” the court wrote. “In fact, historically, each clause has been interpreted separately.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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