Religious freedom in the Constitution

Published on Monday, 24 March 2014 21:46 - Written by

Constitutional lawyer and current Baylor University President Ken Starr has laid out a clear case for why the U.S. Supreme Court should rule for the Hobby Lobby corporation in its fight against the Affordable Care Act’s birth control mandates.

But like all good advocates, he clearly lays out the opposition’s case first — no straw man arguments here.

“How, the government rhetorically asks, can a for-profit corporation possibly have a legally protected right to the free exercise of religion?” Starr asks in USA Today. “Freedom of speech, yes, and so too freedom from unreasonable searches or uncompensated corporate property grabs by the government. That is, corporations — even for-profit entities — enjoy a panoply of constitutional rights. But free exercise of religion seems by its nature to be peculiarly limited to individuals. Corporations obviously don’t pray or go to church, even though corporations can engage in free speech and exercise other constitutional rights.”

That’s the core of the government’s case against Hobby Lobby. And Starr said it’s a strong argument — on its face. But Hobby Lobby is completely owned by five family members, the Greens.

“Had the Greens not incorporated Hobby Lobby, they would likely win the case hands down and leave the Supreme Court’s marble palace with a federally granted exemption from Obamacare’s sweeping regulations,” Starr explained. “That’s because of another statute passed by Congress (by an overwhelming majority) back in 1993. Signed into law by President Clinton, and appropriately dubbed the Religious Freedom Restoration Act (RFRA), this far-reaching measure requires the federal government to provide a very strong (‘compelling’) justification for imposing a regulatory requirement that ‘substantially burdens’ the free exercise of religion.”

And the government has not done so.

“Legal niceties aside, Hobby Lobby is, at bottom, the five Green family members,” Starr contended. “They are its nerve center and soul. They determine, with accountability only to and among themselves, whether to turn aside substantial profits by closing the doors of their 600 stores on Sundays; to greet Hobby Lobby patrons with strains of Christian music; to advertise Christian holidays, not the latest Hobby Lobby wares manufactured in exotic venues; and to donate millions of dollars of corporate profits annually to a variety of Christian missions. No Wall Street gnomes, corporate raiders or dissident shareholders can hold the five owners accountable, nor do they have any pecuniary interest whatsoever in Hobby Lobby’s business plans or the execution of its corporate strategy. Hobby Lobby is the Green family. To argue otherwise is a risible example of highly strained arguments that give lawyers a bad name.”

Here’s why this all matters. The Affordable Care Act is a sweeping piece of legislation that has all but nationalized the health care industry. It puts many decisions about health care in the hands of government (such as which plans are “acceptable” and what benefits must be covered).

But it shouldn’t put decisions about our free exercise of religion in the hands of those bureaucrats. How we practice our faiths, at home, or in the workplace, is none of the government’s business.