The Obama administration has created the “textbook ‘substantial burden’” on the free exercise of religion, a burden banned in the United States, by demanding that Christians provide abortion-inducing drugs to their employees, according a brief filed by Hobby Lobby with the U.S. Supreme Court.
The case pending before the court involves Hobby Lobby and Conestoga Woods, both of which objected to the Obamacare mandate that demands employers provide the drugs – even in violation of their own faith.
Hobby Lobby’s brief was filed on Monday, and the government’s was expected to be filed soon. The government repeatedly has argued that it can require companies to do what it wants – because the company owners are free to worship as they choose.
The brief, submitted by attorneys with the Becket Fund, said the issue isn’t complicated: The law unconstitutionally burdens Americans of faith, and even the government has admitted that by creating exemptions for others.
“This is one of the most straight-forward violations of the Religious Freedom Restoration Act this court is likely to see,” the attorneys argue. “Respondents’ religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception. Yet, the government mandate at issue here compels them to do just that, or face crippling fines, private lawsuits, and government enforcement.”
“This is a textbook ‘substantial burden’ on religious exercise,” the filing said. “Indeed, the government has effectively acknowledged this substantial burden by exempting countless nonprofit entities with the same basic religious objection.
“And it has exempted plans covering tens of millions of people for reasons no more compelling than administrative convenience,” they write. “Given these myriad exemptions, the mandate cannot possibly be the least restrictive means of achieving any compelling government interest – and it is certainly not some universal policy that cannot tolerate additional exemptions.”
The case involving the arts and crafts business founded by David and Barbara Green, which will be argued in Washington on March 25, will decide whether the government has the power to force family business owners to act against their faith.
Their company is being threatened with fines of $1.3 million – per day.
“Hobby Lobby’s latest brief brings into even sharper focus the issue at the heart of this landmark case: No one should be forced to give up their constitutionally protected civil rights just to go into business,” said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty and counsel for Hobby Lobby.
“The filing demonstrates in no uncertain terms that the government’s efforts to strip this family business of its religious rights represent a gross violation of the Religious Freedom Restoration Act and the First Amendment. We are hopeful that the Supreme Court will uphold the Tenth Circuit’s strong affirmation of the Greens’ rights to live out their deeply held beliefs in every aspect of their business.”
The mid-level court in Denver last year agreed with Hobby Lobby and granted a preliminary injunction preventing the government from enforcing the drug demands from Obamacare.
“The government has taken the extreme position that Americans forfeit their constitutional rights when they open a family business,” said Duncan. “That rule would give the government broad powers to restrict religious freedom. People of all faiths should be concerned.”
The case is just one of nearly 100 challenging the Obama strategy to require employers to fund the abortifacient industry.
On a conference call at the time of the filing, Duncan said, the Christian perspective presented by the Greens also has been supported by Hindus, Muslims, women’s groups, members of Congress and many more.
The brief points out that religious organizations are exempt, but Hobby Lobby isn’t. Yet both are corporations in America. The brief questions why the exemption should depend on a tax filing status.
It also argues that in America, individuals and corporations have rights, as already decided by the Supreme Court.
“The government concedes both that respondents’ beliefs are sincere and that the mandate burdens them. The government’s effort to dismiss that burden as insubstantial is belied by the draconian fines ($475 million annually) for noncompliance and its willingness to accommodate others with the exact same beliefs.”
Nearly 100 briefs have flooded into the court on the dispute, most supporting the Hobby Lobby perspective.
One earlier brief warned the government, through Obamacare, is on track to force its beliefs on Americans.
“The story is told of a grizzled master sergeant who, reflecting on his years of service, said: ‘When I joined up, homosexuality was prohibited; now it’s tolerated; and I darn sure am getting out before it’s mandatory,’” explains a note accompanying the brief filed by constitutional expert Herb Titus of William J. Olson P.C. and Michael Connelly of the United States Justice Foundation.
“So it is with respect to homosexual and abortion rights. First, the goal is said to be tolerance. Then, governmental approval and support. Lastly, any pretense of tolerance disappears, and the coercive force of government is used to eliminate any vestige of opposition. The Obamacare contraception/abortion mandate demonstrates that our nation is at the end of phase two, moving into phase three.”
The legal experts explained that the brief is based on the original First Amendment text “that secures freedom of religion.”
That’s not the same as “freedom of worship,” which Obama often references, they explain.
“According to the cases that apply the religious tolerance doctrine, a person’s conscience may be overridden by laws that serve a compelling government interest,” the legal team says. “Under the First Amendment freedom of religion, a person’s conscience cannot be violated no matter how ‘compelling’ the government’s interest may be.”
The brief cites the authors of the Constitution.
“As its chief architect, it was [James] Madison, along with [Thomas] Jefferson, who understood that the First Amendment erected a jurisdictional barrier between matters that belonged to church government and matters that belonged to civil government of the state, the latter having absolutely no jurisdiction over duties owed to the Creator which, by nature, are enforceable only ‘by reason and conviction,’” the brief explains.