The Widdershins

Posts Tagged ‘Justice Roberts

Good afternoon Widdershins. For those tuning in for one of Fredster’s always insightful posts, you’ll have to suffer me today. Fredster’s computer is “CPU”ny and “app”opletic today and I’m subbing for him. He’ll be back in a day or so.

Personal religious ascendancy can be triggered by many things — it might be a burning bush, an archangel, a miracle, or something as mundane as a call to your corporation’s general counsel. It’s that last thing that spawned yesterday’s case before the Supreme Court, Hobby Lobby, et al. v. Sebelius.

You see, Hobby Lobby was already providing contraceptive coverage, even emergency “Plan B” contraception, to Hobby Lobbytheir employees until that fateful day when their General Counsel’s phone rang. It was the Becket Fund for Religious Liberty, a poseur victimhood factory, calling to ask if Hobby Lobby was interested in suing the federal government over the provisions of the Affordable Care Act.

Hobby Lobby, with its 500 to 640 stores and 13,000 to 28,000 employees (differing accounts give differing estimates), was soon joined by Conestoga Wood Specialties Corp., a Mennonite owned company from Pennsylvania with 950 employees. Both agreed to serve as the plaintiffs in this first blush attempt at endowing personal religious freedom upon corporations. I’m sure after a torrid tryst punctuated with passionate disdain for the ACA, Hobby Lobby, et al. v. Sebelius was conceived in the appropriate missionary style.

At the heart of this case is the 1993 Religious Freedom Restoration Act (RFRA). RFRA itself was a congressional reaction to a prior Supreme Court case Congress wanted to rectify. That case was Employment Division v. Smith. Decided in 1990, the issue presented in Smith was whether or not Oregon could deny unemployment benefits to two Native American men who were fired for using peyote, even though peyote was part of their religious rituals.

ScaliaNone other than Justice Scalia wrote:

A person’s religious beliefs cannot prevent him or her from abiding by laws that are neutral and not aimed at restricting religious freedom.

After the Smith case, Congress wanted to ensure minority religions were protected and passed RFRA in response. The RFRA legislative history is without question — Congress wanted to protect individuals, religious institutions, and religious organizations. Nowhere within the legislative history does RFRA mention or even hint at for-profit corporations like Hobby Lobby.

In any discussion of RFRA, you might have heard the term, “shield versus a sword”. The Congressional Record is unambiguous about this point, RFRA was meant as an individual shield and not as a sword when it came to religious rights. Simply put, RFRA was meant to protect individual religious rights and not to be used as a weapon to force religious beliefs upon others.

In the words of a smart 17th century guy, “Therein lies the rub.” The question of the Hobby Lobby case is whether or not a corporation can force, through its actions and overwhelming economic power, its religious fervor upon its female employees when it comes to certain types of contraception — not all contraception mind you, just those types of contraception the billionaire Green family find objectionable.

 

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