WASHINGTON — Do constitutional and statutory protections for religious freedom apply to for-profit corporations? According to the Green family, they do.

The Christian owners of Hobby Lobby, a large craft-store chain headquartered in Oklahoma, contend that their company is indeed protected under the Religious Freedom Restoration Act. That’s why they were among the first for-profit employers to file a legal challenge to the Health and Human Services (HHS)' contraception mandate in 2012.

Now, the Green family and their lawyers are preparing to bring that argument to the U.S. Supreme Court, which is scheduled to hear oral arguments March 25 in a closely watched case that could affect the outcome of 46 other legal challenges to the mandate filed by for-profit employers.

“The plain terms of federal law protect religious exercise wherever it occurs — in the home, in a church, in a charity or in a family business,” said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, a public interest group representing Hobby Lobby, during a Feb. 10 press call that outlined the arguments presented in Hobby Lobby’s brief filed with the high court that day.

“There is no loophole in the First Amendment that excludes people running a business,” added Duncan.

The Becket Fund is also representing the Eternal Word Television Network (EWTN) in its legal challenge to the HHS mandate. The Register is a service of EWTN.

The looming court date for Hobby Lobby has prompted a slew of legal scholars, U.S. lawmakers and religious groups, including the U.S. Conference of Catholic Bishops, to file their own briefs with the high court. Meanwhile,  the Green family has released a video telling their story.

Last year, after Hobby Lobby won a favorable decision from the 10th Circuit Court of Appeals, the Justice Department requested that the justices review the lower court’s ruling. On March 25, the high court will also hear oral arguments in another HHS legal challenge filed by a for-profit employer, Conestoga Wood, which is owned by a Mennonite family.

The oral arguments for the Hobby Lobby case are likely to focus on whether these for-profit plaintiffs are protected under the Religious Freedom Restoration Act (RFRA), which directs the government to pass laws that do not unduly burden the free exercise of religion. RFRA further states that, when such laws are warranted, only the least restrictive means can be used to advance the state’s interests.

Hobby Lobby’s brief explains why the HHS mandate, which provides no exemption or accommodation for business owners, fails to meet the high threshold for free-exercise protections under RFRA.

 

No Protection for For-Profits?

The Obama administration, for its part, has not denied that the controversial law, which requires virtually all private employers to provide cost-free contraception, abortion-inducing drugs and sterilization in their health plans, burdens the free exercise of religious institutions and individuals who object to the provision of such services.

But while the Justice Department provided a narrow exemption for places of worship and a controversial accommodation for religious nonprofits, its Hobby Lobby brief insists that for-profit employers are entitled to no such relief because they “are not persons exercising religion within the meaning of RFRA.”

In papers filed with the high court, the Justice Department’s brief argues that RFRA was never intended by Congress to protect “profit-making corporate entities engaged in commercial activity.”

Government lawyers, led by Solicitor General Donald Verrilli, further assert that the federal law “imposes no personal obligations on the Greens; it instead regulates only the corporations they own and the group health plan the corporations sponsor.”

Because the law does not “burden the Greens’ individual exercise of religion,” the brief argues, “RFRA does not entitle them to any exemption for the corporations based on their individual religious belief.”

If for-profit corporations were granted such protections, the government warns, “thousands of employees … statutorily guaranteed access to benefits of great importance to health and well-being” would be put at a significant disadvantage, as other for-profit employers would soon secure exemptions to other essential federal laws.

 

‘No Distinction’

But Hobby Lobby’s attorneys, who include Paul Clement, a U.S. solicitor general during George W. Bush’s presidency, counter that RFRA’s strong protections for free exercise do not distinguish between individuals and corporations.

RFRA covers any “person’s exercise of religion,” states Hobby Lobby’s brief, citing the definition of “person” in the so-called “Dictionary Act,” which “includes both natural persons (like the Greens) and corporations (like Hobby Lobby).”

In fact, the brief argues that the Greens “exercise their faith through Hobby Lobby, and those beliefs are entitled to protection under a statute that draws no distinction between natural or corporate persons, let alone between for-profit and nonprofit corporations.”

The brief uses related examples to highlight the overlap of commercial activity and constitutionally protected speech. For instance, The New York Times “may sometimes engage in commercial speech (i.e., when it is selling subscriptions) but engages in noncommercial speech when it is editorializing,” states the brief, underscoring the difficulty of drawing sharp distinctions between the activities of for-profit and nonprofit employers or between corporations and individuals.

Ironically, the editorial board of the Times has endorsed the Obama administration’s contention that for-profit businesses are “secular” and cannot claim free-exercise rights. But Hobby Lobby’s brief counters that the government failed to show why the “First Amendment singles out religious exercise as the only right that may not be exercised while earning a living.”

If the government were to win the case based on the argument that only individuals can be accorded full constitutional and statutory protections, Hobby Lobby’s brief warns that businesses “owned by women and minorities could face discrimination, and neither the owners nor their companies could seek protection.”

Returning to The New York Times, the brief points out that the “government could equally say that only the editors of The New York Times can truly exercise free-speech rights, and so the First Amendment is unconcerned with defamation liability for the corporate entity.”

 

Strong Case

Hobby Lobby’s argument won a favorable ruling from the 10th Circuit, and other leading legal experts on religious freedom believe that the Greens have a strong case.

“Congress explicitly understood RFRA to protect for-profit corporations and their owners,” stated Douglas Laycock, a professor of law at the University of Virginia, in a brief filed on behalf of the Christian Legal Society.

Hobby Lobby’s lawyers acknowledge that there may be “hard” cases where the state’s interests will trump the free exercise of their clients, but the HHS mandate does not meet that test.

“There is simply no reason why the government cannot give the Greens an exemption from the mandate. After all, it has already exempted millions of other people, some for religious reasons and some purely for convenience,” said Kyle Duncan during the Feb. 10 press call. “The Greens’ faith deserves the same kind of protection. We are hopeful that the Supreme Court will agree when the case is argued on March 25.”

Joan Frawley Desmond is the Register’s senior editor.