Debate forum: 06/08

Supreme Court loses faith in the contraception mandate

By Alex Culpepper

Photo: ©2014 Rob Rogers/Pittsburgh Post-Gazette. Reprinted with permission

The April 1 Debate Forum introduced the case before the Supreme Court regarding the owners of Hobby Lobby and their objections to providing coverage for certain types of contraceptives. The question then was centered on whether a company should be able to claim exemption from a mandate in the Affordable Care Act (ACA) that allegedly violates religious beliefs. Well, the question was answered last week when the Court voted 5-4 in favor of Hobby Lobby and its objection to paying for contraception coverage required under the ACA. The objection is based on the idea some forms of contraception are equivalent to abortion, a violation of their religious beliefs, and the argument follows their beliefs should entitle them to an exemption from the contraceptive mandate in the ACA. The foundation for the company’s stand comes from the Religious Freedom and Restoration Act of 1993 (RFRA) and its protections against applying a “substantial burden” on a citizen’s exercise of religion, and debate about the boundaries of the RFRA is part of the issue.

The ruling extends to other for-profit companies as well, and the discussion now shifts to how the Court will treat future objections to laws based on religious beliefs. That’s because this ruling is the first Court decision permitting companies to even have religious beliefs. The ruling also reignites the debate about whether corporations are legally the same as people, and both issues are tightly woven – leading some to see this is as the beginning of a great opt-out circus in which companies go to court over any number of legal objections based on religious belief. Others don’t see it as much of a problem.

Opponents of the court decision say this is a reversal of religious liberty law, and the RFRA was never intended to shield for-profit business. They say it would be a radical restructuring of the First Amendment and would open the door to federally-sanctioned discrimination as employers of all kinds seek exemptions based on religious belief for any number of reasons. They say corporations are not people and cannot have religious beliefs or rights of religious expression, and corporate law makes distinctions between a business and its owners. And now they say, with this decision, the government has yet again aided corporations at the expense of the public. 

Supporters of the Court’s decision begin by reasserting protections under the RFRA as part of the foundation for the ruling, and they claim the owners in this case deserve protection. They say because the owners are deeply religious, by extension, so is the company. They say whatever happens to the company and what the company does is a reflection of the owners. And in this case, they say the company – and thus the owners – is being forced by law to honor and subsidize abortions. They also say the ruling was a “narrow opinion” and does not rubber-stamp any future claim before the court, nor does the ruling promote any limits on availability of contraceptives.

The only real common ground here is both sides agree this is another gut punch to Obamacare. The ruling was definitely a big win for Obamacare opponents because it shows maybe they can chip away at the law in court if they can’t do so in Congress. Supporters of the ruling are savoring the victory, but they mostly believe it’s really not a big deal and is not a radical restructuring of the Constitution or federal law. Opponents, however, believe citizens again lost to the powers of corporate interest, and a new interpretation of the RFRA will allow companies more power to bypass laws based on religious claims.

Reach DCP forum moderator Alex Culpepper at

Debate Forum Question of the Week:

Does the recent Supreme Court decision open the door for future cases involving more religious exemptions by for-profit companies?

Debate Left: Hands off corporations;hands on women’s necks

By Marianne Stanley

The Hobby Lobby decision cannot be satisfactorily addressed in a mere 900-word column like this when it involves so many intersecting, but separate, factors like Separation of Church and State, the wording and intent of our 238-year-old Constitution, the Civil Rights Act of 1964, the RFRA statute of 1993, precedent and, perhaps most importantly, a contingent of mostly white, Christian, wealthy, Republican men with far more raw power than brainpower.

All of the following applies or should apply to this case:

1. Supreme Court precedent which holds only a religious institution that hires only people from that religion can exempt themselves from provisions such as the AFA’s contraception mandate. In other words, a Catholic parish that hires a secretary, for instance, is acting within its rights since the employees are of the same faith and already have the expectation of being denied coverage. The Supreme Court is clearly breaking with established law by violating the rightful expectations of the many to accommodate the few.

2. The First Amendment of our Constitution doesn’t just guarantee the right to practice one’s religion; it also protects us from the imposition of another’s religion or religious beliefs. The Court gets an “F” on this one, having allowed a fabricated “person” – a closely-held corporation – to impose a tenet of radical Christian fundamentalism, that does not emanate from the Bible or anything Christ Himself said or did, on thousands of female employees, regardless of those employees’ own personal beliefs.

3. People and corporations, despite Mitt Romney’s and the Supreme Court’s majority ruling, are NOT the same. A third grader can tell you that. The Citizen’s United ruling has, as expected, horribly muddied the waters of logic and justice, giving corporations all the rights of “We The People,” while denying us the rights and advantages routinely handed out to them.

4. RFRA was never intended to allow individuals or entities to impose their religious beliefs or practices upon others as this Hobby Lobby decision does. It sprang to life to do just the opposite, in fact. It was enacted by a strong, bipartisan, almost unanimous Congress following a 1990 Supreme Court decision (Employment Division v. Smith) that allowed an employer to fire an employee for practicing his Native American religion of using peyote, a hallucinogenic plant that is used in ceremonies. The public was outraged and Congress quickly came together to enact RFRA, hoping to prevent such an intrusion into private religious practices by government. Thus, this court’s use of RFRA to force employees to abide by the supposed religious convictions of the employer turns RFRA into a new and unrecognizable animal. 

5. The Civil Rights Act of 1964 was another bipartisan act of Congress that made it illegal to discriminate on the basis of race, color, religion, sex or national origin. Considering the Hobby Lobby decision only affects women, Title VII of that act should make enforcement of SCOTUS’s decision impossible. The decision clearly only affects one gender. Only if Hobby Lobby also ruled men would not be covered for such things as vasectomies, testosterone injections and Viagra, should this pathetic decision be allowed to stand. Discrimination against an entire class of clearly defined people is prohibited, not only for government entities, but also for employers who have 15 or more employees.

How interesting it will be to see these same justices try to wiggle out of approving restrictions against transfusions, vaccinations and other medical provisions on behalf of Muslim, Jewish, Jehovah’s Witness and other religious employers!

Pretending this is all about “life” is just another big lie. An estimated 98 percent of women of all faiths and backgrounds claim to use birth control. Since contraception is about preventing a pregnancy rather than ending one, the pretense of protecting the “sanctity of life” in utero just flew out the window, finally revealing the far Right’s true and not-so-noble purpose of controlling and interfering in women’s lives. The Hobby Lobby decision should serve as a wake-up call to women as a whole, to stand up and stand together against the reactionary forces, “religious” and otherwise, that are actively trying to limit our fullest expression of ourselves as individuals who are quite capable of making our own moral decisions. We are living in an age of institutionalized misogyny. Look at the push to outlaw abortion, deprive women of contraception, keep our wages lower, hyper-sexualize us in the media while punishing our sexuality in real life. 

This decision is the equivalent of stripping men of their ability to buy condoms or have vasectomies because their employer’s religion sees that as preventing life. This “life” argument is specious anyway. Heck, if “life” is really so sacred, so important, where are all those “religious” voices when it comes to our never-ending wars, to universal health care, to feeding millions of hungry American children, to reacting with compassion rather than hatred towards immigrants, to providing a living wage? Nope. It’s all a sham.

The powers that be need to quit trying to dominate and control women under the guise of religion or freedom. They need to get out of our rooms and wombs, out of our personal decisions and private responsibilities. The Hobby Lobby decision opens a veritable Pandora’s Box, promising years of entertaining, and perhaps even wrenching, fallout from this truly idiotic, singular and misguided ruling.

Marianne Stanley is an attorney, college professor and former journalist who believes many of our nation’s ills could be cured if our children were taught critical thinking skills beginning at the elementary level and continuing through middle and high school. She can be reached at

Debate Right: Hobby Lobby: A victory for religious freedom

By David H. Landon

As soon as the Hobby Lobby decision by the Supreme Court came down on June 30, the Twittersphere and liberal blogs across the land blew up with all the drama of a Kardashian family dinner. The echo chamber of the liberal rant, “war on women,” went into full hyper-drive. In reality, it’s all nonsense, and a thoughtful examination of the Court’s decision simply shows the Court enforcing the standards set by an earlier act of Congress designed to protect our religious freedoms. 

Last month, the Supreme Court, in a 5-4 vote, clarified for-profit corporations can exercise religious beliefs. In earlier cases, it had been well-established that non-profit corporations could exercise religion. It has been equally well established that profit-making ventures could also exercise religion. In its decision, the Court concluded a closely-held, for-profit corporation could engage in the religious exercise of its beliefs and therefore must be afforded the protections of both the First Amendment and the Religious Freedom and Restoration Act of 1993 (RFRA). 

The Supreme Court evaluated that question and ruled closely-held corporations can’t be forced to pay for all of their employees’ contraceptives if doing so would violate their religious beliefs. 

This was not a decision reaching a conclusion on a constitutional question. 

It was also not an expansion of corporate rights. 

There was no debate about the right to use birth control. Despite the hype, this case was not an assault on the reproductive rights of women. Hobby Lobby agreed to provide insurance, which paid for 16 of 20 forms of birth control. This was actually a straightforward question of statutory interpretation regarding whether the government was justified in this particular case in overriding religious liberties.

This case began when the Department of Health and Human Services, under the Affordable Care Act, included 20 contraceptives as part of the “minimum essential coverage” all health insurance plans had to satisfy to comply with Obamacare’s employer mandate. Hobby Lobby and a host of employers objected on religious grounds to four of the items on that list because these particular methods of contraception prevent a fertilized egg from implanting in the uterus. From the view of the religious doctrine of many Americans, such a method of birth control was, essentially, an abortion. While the Administration could arguably force employers to cover employees under Obamacare, in this instance the authority to do so did not trump the First Amendment rights of this tightly-held, for-profit corporation, Hobby Lobby.

When someone makes an RFRA claim, courts look first at whether the government action at issue imposes a “significant burden” on religious exercise. If it does, then the government must show it nevertheless is pursuing a “compelling interest” and uses the “least restrictive means” of serving that interest. The burden here was quite clear, as David and Barbara Green, the founders and owners of the arts-and-crafts emporium Hobby Lobby Inc. (who, by the way, already were providing healthcare to their employees, considering it part of their Christian duties), argued preventing embryonic implantation violated their religious beliefs. The burden was also implicit in knowing failure to comply with the mandate would mean paying $1.3 million in daily fines. 

Having determined Obamacare imposed a “significant burden” on the religious exercise of the owners of Hobby Lobby, the Court ultimately assumed the government’s asserted interests in “public health” and “gender equality” met the needed threshold of a “compelling state interest.” They came to this conclusion despite those interests being undermined by Obamacare’s numerous exemptions and grandfather clauses granted to the unions and other friends of Obama. So, the case came down to whether or not the state is using the “least restrictive means” (sometimes called “narrowly tailored”) of imposing the burden discussed above.

It was at this point the government came up short. The administration was unable to show there was no way to provide free or cheap birth control without burdening believers. There were a number of alternatives available but not used by the government, such as the government simply paying for the four disputed contraceptives itself, or providing a tax credit for those employees whose contraceptive of choice was not covered by insurance. The government made no attempt to reach those accommodations and so failed the “least restrictive means” test.

This was a narrow decision affecting only closely-held, for-profit corporations. Although those opposed to the decision complain corporations are not persons and as such should not be granted the rights of an individual, this line of argument ignores the fact that if you pierce the veil of a closely held entity, you find families and individuals. And why shouldn’t they have the same protections of the First Amendment as everyone else?

The other argument is this will open the flood gates for fringe religions that under the authority of the Hobby Lobby ruling can argue, for example, their closely-held corporation should not cover blood transfusions, as it violates tenants of their religion. While it’s possible, it is a remote possibility that can be covered on a case-by-case basis.  

This is a religiously diverse country and the government must allow people of many different faiths to exercise their beliefs in public. Hobby Lobby is a victory for religious freedom. 

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at

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