"Our argument at the Supreme Court is simple and straightforward: The plain terms of federal law protect religious exercise wherever it occurs -- in the home, in a church, in a charity or in a family business," said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which represents the Green family, owners of Hobby Lobby. "There's no loophole in the First Amendment that excludes people who run a business."
The high court is scheduled to hear arguments in the case March 25.
Hobby Lobby's brief explains that the U.S. Constitution and civil rights laws protect citizens from being forced to comply with the HHS mandate, a federal regulation that would make them provide health coverage for contraceptives that can cause abortions.
"The Greens do not object to covering 16 out of 20 FDA-approved contraceptives," Duncan said in a press conference after the brief was filed. "In fact, their company's generous health plan covers all mandated services for women with the exception of only four contraceptive methods that can terminate human life in the womb.
"Yet if the Greens do not comply with the mandate, they'll expose their businesses to severe fines and other damaging consequences."
Hobby Lobby estimates that it would face fines of $1.3 million per day if it does not comply with the mandate. Steve Green, the company's president, told Fox News it would be cheaper for the company to discontinue health insurance benefits and pay the fine for noncompliance, which is just $2,000 per employee compared to $36,500 per employee for refusing to supply the four controversial contraceptives.
The U.S. 10th Circuit Court of Appeals in Denver ruled in Hobby Lobby's favor last July, recognizing that people do not forfeit their consciences simply because they run a business. That court also recognized that the Religious Freedom Restoration Act, signed by President Clinton in 1993 with bipartisan support, guaranteed Hobby Lobby an exemption from the mandate by preserving the free exercise of faith.
Hobby Lobby's Supreme Court brief calls the HHS mandate "one of the most straightforward violations" of the Religious Freedom Restoration Act the court is likely to see.
Friend-of-the-court briefs have been filed with the Supreme Court 2-1 on Hobby Lobby's behalf, including one by the Southern Baptist Ethics & Religious Liberty Commission.
"Our laws have long protected people of conscience from having to betray their consciences," Duncan said, "whether it's Jehovah's Witnesses who cannot bear arms, Quakers who cannot swear oaths, Orthodox Jews who cannot sell non-Kosher foods or Christians who cannot participate in the death penalty. The same principle protects people who run a business from being forced to betray their deepest convictions about human life."
The question in the case, Duncan said, is "whether profits and religion can never mix."
"That is a strange idea, and nothing in the law supports it. Maybe some business owners pay attention to only the bottom line, but not the Greens, who've always put their faith before profits, which is why they close all of their Hobby Lobby stores on Sundays," Duncan said.
Last week when CVS drug stores announced they would no longer sell tobacco products, the federal government hailed the decision as one that could save lives, Duncan said.
"So it appears to be common sense: The corporations and the people who run them can and should have many purposes besides pursuing the almighty dollar," Duncan said. "The Greens are simply saying that their religious faith can be one of those purposes."
The Religious Freedom Restoration Act, Duncan said, specifically recognizes that many combinations of individuals and associations can exercise religion.
"There's absolutely nothing in RFRA, nothing in its legislative history and nothing in any decision ever interpreting it that suggests that a for-profit corporation is somehow arbitrarily excluded," Duncan said.
Religious liberty experts who were intimately involved in crafting RFRA have explained that everyone understood the law would protect, for example, a Kosher businessman who wishes to operate his business, even if it's a corporation, in accordance with his Jewish faith, Duncan said.
More than 90 lawsuits have been brought against the mandate by hundreds of plaintiffs including individuals, universities, charities, health care providers and businesses. About half of those are related to nonprofit institutions. A victory at the Supreme Court in the Hobby Lobby case "would go a long way toward helping the nonprofit religious organizations make their case too," Duncan said.
The Department of Health and Human Services issued the contraception mandate on behalf of the Obama administration as part of implementing the Affordable Care Act. 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 act after implantation to end the life of the child.
HHS provided an exemption to the rule for churches and their auxiliaries but did not extend it to non-church-related nonprofit organizations and for-profit companies that object. Some conscientious objectors oppose underwriting all contraceptives, while others -- such as Hobby Lobby -- protest paying for abortion-causing drugs. The administration also offered an accommodation for non-church-related religious organizations, but critics said it was inadequate because it still forces such groups to provide access to the drugs through third parties.
The Supreme Court is expected to issue a decision in Sebelius v. Hobby Lobby before the end of its term in late June or early July.
Erin Roach is assistant editor of 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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