We all have parties, BBQ’s, and events to go to this 4th of July weekend. We’re guessing the recent Supreme Court Hobby Lobby decision may come up, so we created the following “talking points” to make you sound informed and engaged in current civic affairs. Because, after all, nothing says “America” like stuffing our faces with charred hot dogs and cold beer while arguing politics. We’ve provided two basic background concepts to know about before you jump into the waters of controversy and, based on your personal feelings about the decision, five support statements you could use to win the argument, sound smart, or better understand the case.
Two things to know before the debate:
- RFRA – If you’re going to wade into the waters of this discussion with intelligent people, you should know this statute. The Religious Freedom Restoration Act was passed in 1993. It emboldened a person’s 1st Amendment right of free exercise of his/her religious practices (Within range. You still can’t claim your religion requires you to sacrifice animals or people) and aimed to prevent laws that substantially burden such practices. If a law imposes a burden, it can only do so in the narrowest of ways and must be for a compelling government interest. RFRA is a statute, which means it’s a law passed by Congress and signed by the President. Shocking in light of the current Congress, RFRA was passed unanimously in the House and was three votes shy of unanimity in the Senate.
- Burwell v. Hobby Lobby is a case about a statute, not a constitutional question. The question in this case is whether or not the Greens and the Hahns – two families who created private, for-profit corporations that openly preached and practiced their pro-Christian beliefs at home and work – were “substantially burdened” (RFRA text) by the Affordable Care Act’s contraception mandate? The mandate said any company who had more than 50 employees must provide insurance that offers 20 contraceptives to women. Four of the 20 contraceptives were not in line with the Christian values of the Greens and Hahns because they were either abortifacients – abortion inducing – or significantly hampered the creation of life.
Forcing the families to offer insurance that covers such contraceptives violated RFRA in that the substantial burden was forced on them in two ways. First, they could’ve opted out of covering these contraceptives but would’ve had to pay a penalty to the government for doing so since the ACA is a mandate. Or, instead they could’ve stopped offering their employees insurance altogether and pushed them into the Obamacare insurance exchange where they could find coverage that would offer those contraceptives. However, this option would’ve also required the families’ pay millions and they believe it’s important to offer their employees insurance benefits. Forced to choose between the two options, the families sued the government for putting them into such a bind arguing they were substantially burdened by the government since both options meant they were going to have to pay or sacrifice their pro-life values.
Option #1: You think the Hobby Lobby decision was wrong. Here’s likely why:
- A private, for-profit corporation got an accommodation in this decision. Hobby Lobby and Conestoga Wood’s religious beliefs exempt both from the ACA contraceptive mandate. If they can get an exception that prevents covering this kind of health care, who else can? Ginsburg said “reading the Act (RFRA) expansively raises a whole host of ‘me too’ problems.”
- Giving women access to all 20 forms of birth control is a compelling government interest – less infants born into substandard economic situations to unwed or wed but-now’s-not-a-good-time mothers sound pretty compelling. Additionally, unemployment is still 6%, the federal deficit is in the trillions. Your opponent likely uses these final points in other opposing arguments. Blammo.
- RFRA’s language specifically states “persons” cannot be substantially burdened by government regulations that impinge free religious expression. Corporations may be extensions of people but they’re not flesh and blood persons. When was the last time you bar mitzvah’d, fasted, or knelt down in a pew to pray with a corporation? Don’t lump Citizens United into this case. It’s different.
- No case-law or historical precedent supports a decision like this. Previous similar cases involved an Amish man who believed paying Social Security taxes violated his religious beliefs. He lost. A Native American couple took peyote at a spiritual ceremony, were fired from their jobs, and denied access to unemployment benefits. They lost too. Both also used free expression claims to fight government action. The shift in this decision from past practice to empowering corporations with free exercise rights sounds pretty “activist” for a majority composed of four justices who regularly use that word against the minority.
- Among those “me too” problems could be situations in which privately held corporations with similar religious values wish to impose their beliefs onto their employees. Take the diner that wishes to discriminate against minorities or gays because of scripture the form their free exercise of that belief takes is to fire, not hire, or ban such people. Are they the people we want to give a confidence boost to with this decision? No. Especially not when this hypothetical turned real last fall in Arizona.
Option #2: You’re happy with the Hobby Lobby decision. Here’s likely why:
- The federal Dictionary Act definition of ‘person’ includes “corporations…as well as individuals.” RFRA was created to provide broad protection for religious liberty and never meant to put the Greens or the Hahns in a situation that forces them to choose between respecting a federal mandate or their religious values. Protecting the free exercise rights of private companies protects the religious liberty of the humans who own and control them.
- I don’t know about you, but paying millions of dollars sounds like a “substantial burden” to most people, including the Greens and the Hahns. Take Hobby Lobby for example, the penalty costs for not covering the contraceptives mandate would likely be $475 million per year. If they dropped covering their employees to avoid paying the penalty, they’d still have to pay $26 million. That’s a burden, no doubt.
- Exemptions from the contraceptive mandate by religious employers already exist, as do other grandfather clauses, companies with less than 50 employees, and more. This decision was narrowly carved out to also include Hobby Lobby, Conestoga and the Hahn family’s other company Mardel, not anyone else who wants to now arbitrarily say “me too!”
- Hobby Lobby and Conestoga object to some, not all, of the contraceptives the mandate requires employers’ cover. It’s not like women who work at either place can’t get any birth control after this decision. Additionally, if you object to such religious exercise, check to see if a company’s religious beliefs are listed on their mission statement, website, hamburger wrappers (In-n-Out Burger), or materials before applying for a job there or patronizing the business. It’ll save you the trouble of finding out the hard way later.
- This decision concerns only the contraception mandate of the Affordable Care Act and should not be projected into broader, more ominous applications. As Alito said “it’s not a shield for employers who might cloak illegal discrimination as a religious practice.”
Happy holiday! Good luck out there, ‘Bystandr’s!