In a friend-of-the-court brief, the Ethics & Religious Liberty Commission (ERLC) joined seven other groups in asking the justices to review split decisions at the appeals court level on the mandate. The brief calls for the Supreme Court to rule in favor of the religious freedom rights of Hobby Lobby and other family-owned businesses that have conscientious objections to a regulation that requires employers to provide abortion-causing drugs for their workers.
It asks the high court to uphold a lower-court decision in favor of Hobby Lobby and its sister corporation Mardel, Oklahoma City-based retail chains owned by the pro-life evangelical Christian Green family. The brief also calls for the justices to overturn a ruling against Conestoga Wood Specialties, a Pennsylvania business owned by pro-life Mennonites.
President Russell D. Moore said the ERLC stands with the family-owned businesses "for religious liberty and against the audacity of a state that believes it can annex the human conscience."
"This is not just a matter for Christians but for all people of good will who recognize the dangers of a coercive state church, including that of a state church of sexual revolution," Moore said in a statement to Baptist Press.
The Supreme Court is expected to announce after Nov. 12 if it will grant review in the cases, according to the Christian Legal Society (CLS), which wrote the brief signed onto by the ERLC.
Two factors that appear to favor review by the high court are: 1) The divided opinions by appeals courts, with the 10th Circuit Court of Appeals in Denver deciding in favor of Hobby Lobby and Mardel and the Third Circuit in Philadelphia ruling against Conestoga Wood, and 2) the requests by both the Department of Justice and Hobby Lobby for Supreme Court review of the same opinion. Hobby Lobby's Oct. 21 petition to the high court was an unconventional move for a party that won in the appeals court.
Kim Colby, CLS' senior legal counsel, cited a third reason for likely Supreme Court review: The mandate's threat to religious freedom.
Of the lower courts' differences, Colby told Baptist Press in a written statement that the justices' main job "is to take cases where there is a 'circuit split' and decide which court reached the right legal and constitutional conclusion, particularly when First Amendment rights are at stake."
If the Supreme Court grants review, it is likely to hear oral arguments early in 2014 and render a decision on the abortion/contraception mandate before the end of its term in late June or early July.
The Department of Health and Human Services (HHS) issued the abortion/contraception mandate as part of implementing the Affordable Care Act, the 2010 health care reform law known as Obamacare. In addition to contraceptives, the mandate requires coverage of such drugs as Plan B and other "morning-after" pills that possess a post-fertilization mechanism that can cause an abortion by preventing implantation of tiny embryos. The rule also covers "ella," which -- in a fashion similar to the abortion drug RU 486 -- can even act after implantation to end the life of the child.
The brief filed Oct. 21 with the Supreme Court by CLS and endorsed by the ERLC and others says the Obama administration's argument "that religious persons forfeit their free exercise of religion when they enter the marketplace brushes aside two millennia of Christian teaching."
The owners of Hobby Lobby, Mardel and Conestoga Wood Specialties "are living consistently with two millennia of teaching that one's faith necessarily should influence one's work," the brief contends. "The government's arbitrary line-drawing between non-profit and for-profit work disregards orthodox Christian doctrine regarding the duty to honor God through one's work."
In its July ruling against Conestoga Wood, a divided three-judge panel of the Third Circuit said "for-profit, secular organizations cannot engage in religious exercise." A month earlier, however, the 10th Circuit rejected the Obama administration's argument that protections under the 1993 Religious Freedom Restoration Act (RFRA) do not extend to for-profit companies. The 10th Circuit ruled corporations such as Hobby Lobby and Mardel "can be 'persons' exercising religion for purposes" of RFRA
The CLS/ERLC brief also argues the abortion/contraception mandate fails to protect not only the religious freedom of for-profit businesses but that of non-profit religious organizations other than churches and their affiliated auxiliaries.
The HHS accommodation for these religious organizations, which forces them to provide access to abortion-causing drugs through third parties, actually "violates, rather than respects, their religious liberty," the brief says.
CLS' Colby told BP, "These cases are not about whether contraceptives will be readily available -- access to contraceptives is plentiful and inexpensive -- but whether America will remain a pluralistic society that sustains a robust religious liberty for Americans of all faiths."
For-profit and non-profit corporations have filed a total of 75 lawsuits against the mandate, according to the Becket Fund for Religious Liberty. GuideStone Financial Services, the Southern Baptist Convention's health and financial benefits entity, combined with two of its health plan participants to file one of the more recent suits Oct. 11.
Joining the ERLC on the CLS brief were the National Association of Evangelicals, Prison Fellowship Ministries, Association of Gospel Rescue Missions, Association of Christian Schools International, Institutional Religious Freedom Alliance and the C12 Group.
Hobby Lobby -- founded by David Green, who remains its chief executive officer -- has said it will not comply with the mandate. If it ultimately loses in court, the chain of nearly 570 stores could face fines totaling $1.3 million a day. Mardell, also owned by the Greens, is a Christian bookstore chain.
The Hahn family, which owns Conestoga Wood Specialties, has been living under the mandate since its group health plan was renewed in January.
The 10th Circuit case is Sebelius v. Hobby Lobby, while the Third Circuit case is Conestoga Wood v. Sebelius. Kathleen Sebelius is the HHS secretary.
Tom Strode is the Washington bureau chief for Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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