Amicus Brief On Government’s RFRA Position In Hobby Lobby Is Filed By 18 Senate Democrats

An assortment of senators who were all members of Congress during the passage of both the Religious Freedom Restoration Act of 1993 (RFRA) and the Patient Protection and Affordable Care Act (ACA) have filed an amicus curiae brief detailing the legislative and judicial history leading to the passage of both laws in their support of the U.S. government’s position in Sebelius v. Hobby Lobby Stores, Inc., which is now under consideration before the U.S. Supreme Court.

The owners of Hobby Lobby, a chain of arts-and-crafts stores, believe that human life begins at conception and, consequently, decided to exclude certain contraceptives from Hobby Lobby’s group health insurance coverage. They brought suit against the government alleging that the contraceptive mandate violates the Free Exercise Clause of the First Amendment, as well as RFRA, which states that the government “shall not substantially burden a person’s exercise of religion” unless it is the least restrictive means to further a compelling government interest.

RFRA protection for those controlling secular companies. The U.S. Tenth Circuit Court of Appeals ruled that secular, for-profit corporations could deny contraceptive coverage to employees, even if the employees were otherwise entitled to it by federal law, on the basis of religious objections by the individuals controlling the corporation. The government petitioned the U.S. Supreme Court for review, arguing that the decision by the Tenth Circuit conflicts with recent decisions of other appeals courts and that religious exemptions are not available to for-profit corporations, and the High Court granted the petition.

A number of amicus briefs have been filed with the Court, in addition to the one filed by the 18 Democratic senators on Jan. 28, 2014. In the January 28th brief, the senators argue that, if allowed to stand, the Tenth Circuit’s decision would result in owners or shareholders of for-profit companies being allowed to impose their own religious beliefs on employees through the denial of insurance coverage for contraception.

Legislative history. The senators contend that Congress enacted the RFRA merely to restore the compelling interest test, which was first set forth in Sherbert v. Verner, 374 U.S. 398 (1963). The compelling interest test requires, for any governmental action that substantially burdens a First Amendment free exercise right, that the government justify its action by demonstrating a compelling governmental interest. The U.S. Supreme Court overturned that test in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), so that a plaintiff who claimed her free-exercise rights had been trampled could only prevail by showing that the legislature had acted with an inappropriate motive.

The senators state in their brief that Congress had a full understanding of the RFRA and its limited purpose when it enacted the ACA. They point to an assortment of bills introduced prior to the final passage of RFRA in 1993 that focus on restoring the pre-Smith compelling interest test. In addition, the senators emphasize that early versions of the bill (H.R. 5377) that became the RFRA included corporations as “persons” subject to free-exercise protection, but, in the final version of the bill passed by Congress, that language had been removed. They also provided evidence that the House Judiciary Committee assumed that, when interpreting the RFRA, courts would look to pre-Smith free exercise of religion cases for guidance, citing H.R. Rep. No. 103-88, at 6-7.

Judicial history. The senators also highlight nineteen U.S. Supreme Court cases cited in the reports from the House and Senate Judiciary Committee that accompanied the legislation. None, they say, even suggest that secular, for-profit companies could possess the right to the free exercise of religion. The free-exercise rights addressed were, instead, those of individuals or religious non-profit organizations.

Implementing regulations. In additional support of their argument, the 18 senators note that ACA implementing regulations incorporating exemptions from the contraceptive requirement for religious employers and certain nonprofit religious organizations cover 335,000 entities, but no secular corporations. The implementing regulations also include a way for women who work for such religious employers to obtain contraceptive coverage benefits directly from their insurance companies (see HHS Reg. Sec. 147.131(c)(2)(ii)).

Finally, the senators direct the Court to the so-called Blunt Amendment, which would have amended the ACA to allow any secular employer or insurance provide to deny health coverage on the basis of religious belief or moral convictions. According to Senator Richard Durbin, the amendment, introduced by Senator Roy Blunt and voted down by the Senate in 2012, would have allowed employers “to deny coverage for any health service.” Senator Patrick Leahy had also stated that, based on the reasoning behind the amendment, it “would allow any employer or insurer to refuse contraceptive coverage, annual well-women visits, gestational diabetes screening and domestic violence screenings.”

The senators claim that the Tenth Circuit’s ruling would result in a situation even more extreme than that envisioned by the authors of the Blunt Amendment, one in which a secular, for-profit company’s shareholders could deny employees access to health care services based on the shareholders’ religious convictions.

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