WASHINGTON — A year and a half after they filed suit in federal court against the Health and Human Services’ contraception mandate, David and Barbara Green finally got their day before the justices who will decide whether the Oklahoma-based business owners and their company, Hobby Lobby, a large craft-store chain, can claim free-exercise rights to secure an exemption from the controversial federal law.

On March 25, the Supreme Court heard oral arguments in the closely watched case that has prompted an intense legal and political debate on whether constitutional and statutory religious-freedom protections apply to businesses as well as individuals.

At the high court, the Greens were joined by the Hahns, the Pennsylvania-based Mennonite owners of Conestoga Wood Specialties Corp., who also claim that the law violates the federal Religious Freedom Restoration Act, which sets a high threshold for laws that “substantially burden” free exercise.

Legal experts agree that the justices appear to be divided on whether the Green and Hahn families could claim religious-freedom protections for their companies, noting that Justice Anthony Kennedy would likely play a deciding role.

However, justices from both the liberal and conservative wings raised a number of concerns during the oral arguments that suggest the court might issue a narrow ruling that only applies to closely held family companies like Conestoga and Hobby Lobby, rather than publicly traded corporations.

“No one can make firm predictions based on oral argument, but it appears to me, likely, that the court will hold that at least some for-profit corporations can sue under the Religious Freedom Restoration Act,” Michael McConnell, an expert on constitutional law at Stanford University, told the Register.

 

The RFRA’s High Standard

The Religious Freedom Restoration Act (RFRA), signed into law by President Bill Clinton with bipartisan support, states that government shall not pass laws that “substantially burden” religious freedom without a “compelling state interest.” Once that interest has been established, the government must show that it has provided the least restrictive means of advancing its interest.

In papers filed with the court, Hobby Lobby and Conestoga argue that the government failed to meet RFRA’s demanding threshold.

The plaintiffs assert that the administration’s justification for imposing the mandate — advancing public health and women’s access to contraception — is too vague to meet RFRA’s exacting standard. Further, they argue that the government can pay for this benefit directly without forcing employers to violate their beliefs, so it has also failed to find the least restrictive means for advancing its interest.

“It would be unfortunate if the court were to split along ‘liberal’ and ‘conservative’ lines, because religious freedom should not be a partisan or political issue,” Richard Garnett, a professor of law at the University of Notre Dame, told the Register. “The purpose of RFRA was to invite courts to review even generally applicable and well-meaning laws and to make sure that unnecessary burdens are not imposed on religious liberty.”

“There is no reason to categorically exclude businesses from the act’s coverage or to insist that the commercial sector be a faith-free zone,” said Garnett.

 

Both Sides Grilled

During the oral arguments, Paul Clement, the advocate for both plaintiffs and a former U.S. solicitor general, was pressed to explain whether a ruling in favor of the business owners might spawn an explosion of legal challenges to various federal laws from corporations citing free-exercise claims. Some justices worried that female employees would be denied their right to co-pay-free contraception.

Clement was also reminded that Hobby Lobby and Conestoga would not have to comply with the mandate if they discontinue their employee health insurance. That decision would trigger financial penalties, but some of the justices contended that the fines were not very high and thus did not constitute a substantial burden to the companies' free-exercise rights. 

During the second half of the oral arguments, Donald Verrilli Jr., the current U.S. solicitor general, was also pummeled with questions from justices.

They asked him to explain how the state had a compelling interest in requiring the Greens and Hahns to comply with the mandate but exempted so many other employers. Further, Justice Kennedy expressed concern that the government's argument could be used to force employers to cover abortion services, and he also noted that the court was scrutinizing a law issued by a federal agency, not enacted by Congress — a vulnerable point for the administration’s legal argument.

Matt Bowman, a senior legal counsel with the Alliance Defending Freedom, a public interest group that is representing Conestoga, said he was heartened that the justices raised three key issues.

“First, they asked whether families [should] abandon their freedom just because they are earning a living in business,” Bowman told the Register.

“Second, they suggested that the government position is so extreme it could force a family business to provide any kind of abortion, despite objections based on religious belief.”

“Third, they noted that this legal problem didn’t arise because of a decision by Congress, but because of rules issued by agency bureaucrats,” he said.

 

Justice Kennedy’s Concerns

Stanford’s McConnell noted, “Justice Kennedy seems to regard it as significant that the contraceptive mandate was imposed not by vote of Congress but by agency regulation. That makes sense, because the court is more likely to defer to the democratic branches than to the bureaucracy.”

In a post for the National Review blog Bench Memos, Carrie Severino highlighted Kennedy’s concerns about the law’s likely impact on conscience protections for health-care providers.

“Justice Kennedy put the solicitor general into the uncomfortable position of admitting that its arguments would mean for-profit hospitals could be forced to perform abortions, even if that violated their conscience rights,” wrote Severino.

“Verrilli’s obvious discomfort at admitting this further evidenced the degree to which the government’s hostility to the religious objectors in this case turns on its disagreement with their theology.”

Luke Goodrich, deputy general counsel for the Becket Fund for Religious Liberty, the public interest group that has represented Hobby Lobby since the Greens filed suit in September 2012, said he was not surprised by remarks from Chief Justice John Roberts that a decision could be tailored for family-owned businesses rather than a blanket exemption for all corporations.

“The only for-profit corporations that have actually sued are all closely held,” Goodrich told the Register, shortly after he left the Supreme Court. “So it would be natural for the court to rule on the companies before it.”

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

 

Consequences

John Garvey, the president of The Catholic University of America (CUA) and an authority on constitutional law, disputed the government’s prediction that a ruling against the mandate could spawn further legal challenges from for-profit corporations and make it tough to enforce federal laws.

“These questions have been raised before, but the experience we have had with protecting religious freedom by constitutional and statutory rule gives us a lot of confidence that the world will not come apart,” Garvey told the Register.

“We can live with some flexibility because we believe religious liberty is so important.”

As the justices pressed both Clement and Verrilli to explain the unintended consequences of a ruling in favor of or against the plaintiffs, religious freedom and pro-life activists gathered in front of the Supreme Court to express support for Hobby Lobby and Conestoga, while Planned Parenthood and its political allies registered their enthusiasm for the federal mandate.

U.S. Rep. Diane Black, R-Tenn., the author of H.R. 940, the Health Care Conscience Rights Act, was among the speakers at a series of press conferences that marked the close of the oral arguments and signaled the high-stakes impact of the court’s ruling, which is expected by late June.

Not only will the justices determine whether constitutional and statutory religious-freedom protections apply to Hobby Lobby and Conestoga, but the ruling is also likely to decide the outcome of 37 other HHS lawsuits filed by for-profit employers.

CUA’s Garvey speculated that the decision also could have an impact on the 20 lawsuits filed by church-affiliated institutions, including CUA.

“If Hobby Lobby and Conestoga win this case, it’s conceivable that HHS could still say, ‘We have already provided all the exemptions we are willing to give,’” said Garvey.

“But the government could decide to go back to the drawing board. If dioceses and for-profits are going to be exempt, it might be strange to insist that religious nonprofits are the only ones obliged to comply” with the law.

 

‘A Critical Moment’

Michael Warsaw, CEO of EWTN, said the March 25 oral arguments “represent a critical moment in the fight to stop the government's unconscionable HHS mandate.”

“While we await the Supreme Court's decision," Warsaw added, "EWTN and the state of Alabama are moving forward with our own case against the mandate. I would ask our EWTN family to continue to keep this matter in their prayers.”

Hobby Lobby’s Barbara Green also referenced prayers as the case moves forward, in her own comments following the oral arguments.

“We were encouraged by today’s arguments,” she said. “We are thankful that the Supreme Court has heard our case, and we prayerfully await the justices’ decision.”

Joan Frawley Desmond is the Register’s senior editor.