By / Nov 5

On Nov. 4, the Biden administration issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The stated purpose of this rule is “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” The intent to issue this rule was announced in September by President Biden, but the text of the rule was issued in November.

What is OSHA?

The Occupational Safety and Health Administration (OSHA) is under the Department of Labor. Established by President Richard Nixon in 1970, the agency’s mission is “to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.” OSHA’s jurisdiction covers most private and public sector employers, making the vaccine mandate announcement one of the most wide-reaching to date. 

This is not the first time that OSHA has intervened in the COVID pandemic. In June of this year, they announced a rule requiring healthcare employers to provide protective equipment such as masks and gloves, ensure proper ventilation, and screen patients at risk for COVID. This emergency standard was limited to healthcare employers (because of the group’s high-risk factors), though additional optional measures were disseminated for other industries such as manufacturing, retail, and food supply chains. 

What is the proposed rule?

The rule states that “covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”

In short, the rule requires employers with 100 or more employees to submit their employees to weekly COVID-19 testing and masking requirements, or the employees can opt to receive one of the three vaccines that are approved or authorized for the prevention of COVID-19 in the U.S.: Pfizer, Moderna, or Johnson & Johnson.

The OSHA rule will affect approximately 84 million private-sector workers across the country, including some 31 million who are believed to be unvaccinated.

It’s important to note that this rule doesn’t require an employee to receive the vaccine, but if they choose not to be vaccinated, they must undergo testing every week.  

What is the timeframe?

By Jan. 4, 2022 employees who work for employers with 100 or more people must be vaccinated or submit to weekly testing and masking requirements. The rule was published in the federal register on Nov. 5, and it is open for public comments for 30 days. The ERLC will be submitting public comments to OSHA about this issue.

Are there religious exemptions?

There are three exemptions listed in the rule rule:

  1. For whom a vaccine is medically contraindicated;
  2. For whom medical necessity requires a delay in vaccination; or
  3. Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

While there are stated religious liberty exemptions, it is concerning that the ETS requires each covered employer to establish and implement their own written policy regarding religious exemptions. With this rule, each employer is effectively tasked with creating their own policies, and there will be thousands of different policies throughout the country, leading to inconsistent application and confusion. The proposed rule doesn’t offer any guidance for how to structure exemptions for objectors who have sincerely held religious beliefs.

How does this affect SBC entities?

On Nov. 5, the Southern Baptist Theological Seminary (SBTS) and Asbury Theological Seminary, filed a petition with the U.S. Court of Appeals for the 6th Circuit to challenge the OSHA rule. Dr. Albert Mohler, president of SBTS, stated that “it is unacceptable for the government to force religious institutions to become coercive extensions of state power. We have no choice but to push back against this intrusion of the government into matters of conscience and religious conviction.”

According to the Alliance Defending Freedom, 

“the lawsuit The Southern Baptist Theological Seminary v. Occupational Safety and Health Administration, alleges that the Biden administration lacks jurisdiction to dictate employment practices to religious institutions, lacks constitutional and statutory authority to issue the employer mandate, and that the mandate failed to meet the required procedural hurdles. In short, the federal government cannot coerce individuals nationwide to undergo medical treatment, and it lacks authority to conscript employers to compel that result.”

Is this the proper role of the government?

This rule raises questions and concerns about limits of government regulation both in terms of public health and safety measures. While governments do have heightened responsibilities during a public health crisis, the state must not use public health emergencies to overstep and exert authority that the Constitution has not entrusted it with.

ERLC’s Acting President, Brent Leatherwood stated:

From the outset of the challenges presented by COVID-19, we have consistently argued that  guidance from elected officials and public health experts is the path to take in lieu of mandates –– particularly as it relates to religious entities. This proposed rule is not that. Some private institutions will raise serious objections to government overreach. The better route for the state to take is providing clear, consistent, and coherent counsel that our fight is against a deadly disease, not one another.

How will the ERLC engage?

The OSHA interim final rule is open for public comments through Dec. 6. As we have done on previous occasions with proposed rules affecting churches and religious organizations, the ERLC will submit public comments expressing concerns with the scope of the regulation on behalf of our convention of churches. 

How should Christians think about this?

The ERLC has emphatically stated since the beginning of this public health challenge that government officials should opt for providing guidance over mandates, while at the same time seeking to uphold the free exercise of religion. Elected officials and local health experts should be actively partnering with pastors and churches to serve local communities as this pandemic rages on.

By / Jan 24

Southern Baptists believe all human beings are created in the image of God and must be treated accordingly, no matter the stage of life. The Southern Baptist Convention (SBC) in a 2015 resolution recognized that God is the author of life, “from the moment of conception until natural death.” In view of this, ERLC remains deeply concerned about the U.S. Department of Health and Human Services (HHS) preventive care mandate, whereby the government bullies people of deep convictions to violate their beliefs in order to achieve government policy.

The federal government is required by the U.S. Constitution to safeguard religious freedom for all. Trampling the consciences of people of faith—such as the Little Sisters of the Poor, who serve the most vulnerable with love and compassion—hurts society and violates fundamental American principles. The Constitution safeguards the consciences of the governed, and federal regulations should reflect this constraint on government.

ERLC supports exemptions for both religious and moral objectors from the HHS preventive care mandate. At the founding of our country, James Madison wrote, “Conscience is the most sacred of all property.” Regardless of the source of the conviction, whether religious or moral, the Constitution guarantees the protection of the conscience. Contraception will remain widely and readily available to those who seek it. Those employed by religious organizations and faith-based universities usually share the
organization's religious convictions. Those who disagree with their employer’s religious or moral sentiments still have access to federal, state, and local programs that provide free or subsidized contraception, or can purchase contraception from local drugstores at a minimal cost.

It is time for HHS to provide true religious and moral exemptions to the unconstitutional preventive care mandate. Three years have passed since the Supreme Court decided in Zubik v. Burwell that mandated coverage of certain preventive services under the Affordable Care Act was unconstitutional. In spite of this decision, HHS did not provide a legitimate accommodation for people of faith. Now is the time for HHS to end the unconstitutional mandate and make an exemption covering those with religious and moral objections.

By / Nov 12

The Supreme Court recently agreed to hear a challenge from religious nonprofit groups to federal government’s contraceptive mandate. Here are some answers to questions you may have about that case.

What is this case and what’s it about?

The case the Supreme Court will hear, Little Sisters of the Poor Home for the Aged v. Burwell, combines seven challenges to the Health and Human Services’ (HHS) contraceptive mandate.

To fulfill the requirements of the Affordable Healthcare Act (aka ObamaCare) the federal government passed a regulation (often called the “HHS Mandate”) that attempts to force groups into providing insurance coverage for contraceptives, sterilization, and abortifacients. Some religious groups, such as the Little Sisters of the Poor, objected on the ground that the requirement violates their religious liberty as protected by the First Amendment and the federal Religious Freedom Restoration Act (RFRA). HHS offered an accommodation which the Little Sisters found to be insufficient.

The Supreme Court will decide, as SCOTUS Blog explains, whether the government has offered nonprofit religious employers a means to comply and whether the whether HHS satisfies RFRA’s test for overriding sincerely held religious objections in circumstances where HHS itself insists that overriding the religious objection will not fulfill HHS’s regulatory objective—namely, the provision of no-cost contraceptives to the objector’s employees.

What was the accommodation and why was it rejected?

The proposed accommodation would require the Little Sisters to find an insurer who will cover all of the things they oppose: sterilization, contraceptive, abortifacients, etc. They would also be required to sign a form that triggers the start of that coverage of those items and procedures that they find objectionable. They believe that the accommodation does not prevent them from violating their religious beliefs.

Doesn’t the “religious employer exemption” cover the Little Sisters and similar non-profits?

No, the general exemption the HHS provides applies only to churches and certain types of church-like organizations. Most religious non-profits do not qualify.

Didn’t the Hobby Lobby case already resolve this issue?

Last year the Court agreed some owners of closely held for-profit corporations, like Hobby Lobby, have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point.  

The Court found that the HHS mandate violated RFRA because it imposed a substantial burden (i.e., if the companies refused to violate their beliefs, they would face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel). The government also failed to satisfy RFRA’s least restrictive-means standard, since the government could assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections or extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate.

In that case, the companies can qualify for an exemption by fill out a form and submitting it to the government. This type of accommodation was already available to religious non-profits. But this is a procedure the Little Sisters, et al., find insufficient to resolve their religious objections.

Isn’t this merely a Catholic issue?

No. Many Protestant non-profits have similar objections. The current case combines the cases that were brought by East Texas Baptist University, Southern Nazarene University, and Geneva College. Other groups who have brought similar lawsuits, such as Wheaton College, will also be affected by the outcome of this ruling.

 

 

By / Aug 22

When a law is revised eight times, it’s worth asking whether or not it should ever have been enacted in the first place.

Today, the Department of Health and Human Services (HHS) issued a new rule regarding its requirement for certain faith-based non-profit organizations and closely held for-profits to provide abortion-causing drugs and devices to their employees through their health plans. This is the eighth revision to the Health and Human Services Mandate. And regrettably, the government still falls short of understanding the concerns surrounding religious liberty. We are pleased that HHS recognizes that they cannot force some of our nation’s faith community to violate their consciences on a matter as significant as life, but we are deeply disappointed that they still believe they should be the arbiters of the line between what constitutes protected religious activity and what does not.

This new regulation was drawn up partly in response to the Supreme Court’s decision protecting Hobby Lobby and other faith-based businesses from the HHS mandate to provide these items to their employees. The Administration also felt the new regulation was necessary because many faith-based organizations complained that they were being treated differently from other faith-based organizations in the application of the original regulation. These groups rightly complained that the administration had taken on itself the task of determining which faith-based groups qualified for exemption from the mandate, mostly “houses of worship.” All others were required to submit a form justifying their claim for exemption and authorizing the government to contact their insurer to arrange for the provision of these drugs and devices.

The new rule does little to change that dichotomy. All it does is move the line. Non-exempt faith-based organizations, i.e., just about everyone except “houses of worship,” will still be required to submit paperwork to the government declaring their religious claim of exemption. The government has resorted to shuffling paperwork, not ceasing its conscience-paving ways. The new rule no longer puts these organizations in the position of authorizing the government to contact their insurer to require the provision of these abortion and contraceptive items. But the result is the same. Upon notification by the organization, the government will take it on itself to notify the organization’s insurer and require provision of these items. In other words, if you do not meet the government’s classification as an “exempt” organization, your insurer will still be providing abortion and contraceptive services to your employees, regardless of your objection.

Essentially, the administration has set itself up as the grand inquisitor, determining who is religious enough to merit the government’s benevolence and who is not. The religious liberty violations that led to countless court cases, remains. Some of the non-favored organizations still affected by this rule have been providing faith-based ministry for more than 100 years. Their claims of faith-informed conscience objections are well established and deserve unqualified, unquestioned accommodation in the same way “houses of worship” receive them. If “houses of worship” and similar groups are exempted from having these items provided to their employees, these other groups should receive the same exemption. A second proposed rule stipulates the regulations for defining what constitutes a closely-held for-profit company, a move in response to the government’s loss in the Burwell v. Hobby Lobby Stores Inc., case earlier this summer.

The Administration’s new rule for the HHS Mandate has not alleviated our concerns about its disregard for religious freedom. The rule reveals the administration remains committed to advancing sexual liberty over First Amendment protected religious liberty. The rule still runs afoul of faith and conscience in the following ways:

● It empowers the government to decide whose faith-driven activity is religious enough to merit its exemption.

● It requires taxpayers to cover the cost of abortion-causing drugs and devices.

● It violates the administration’s commitment in the original passage of the ACA not to include abortion in its approved plans.

● It forces some faith-based organizations with clear conscience objections to choose between violating their consciences regarding abortion or contraception and government prosecution.

As Christians, we can respond in the following ways:

● Remember that God is aware. He has not abandoned His people.

● Pray that God will give understanding to those continuing to try to force people of faith to violate their consciences.

● Pray that God will help Congress respond in a way that will assure conscience protections.

● Call your congressman and senators and ask them to act on behalf of people of faith. You can get their contact information here.

● Write a letter to the editor of your local paper explaining why you oppose the new regulation.

● Contact the White House and express your opposition in a courteous but firm manner.

●Contact any ministries or businesses that you know are affected by the mandate and let them know you are praying for them.

● Pray that God will raise up the leaders our nation needs to restore legal protections for the unborn at any stage of life.

By / Mar 27

WASHINGTON (BP) — The Obama administration's acknowledgment that its stance would require businesses to underwrite abortions without the right to a legal challenge may have been a particularly telling moment in a March 25 U.S. Supreme Court case that likely will be a landmark in religious liberty.

It seemed that way to some who oppose the government's position, and they expressed an opinion that it seemed that way to some of the justices.

The Supreme Court heard 90 minutes of oral arguments regarding the federal government's abortion/contraception mandate, which requires employers to provide abortion-causing drugs and devices for their workers. Two family owned businesses — nationwide retail chain Hobby Lobby and Pennsylvania-based Conestoga Wood Specialties — had their opportunity to present their contention that the federal rule violates free exercise of religion rights and a 1993 law protecting religious liberty.

Associate Justice Anthony Kennedy asked Solicitor General Donald Verrilli, the Obama administration's advocate, if he thought a for-profit corporation “could be forced in principle to pay for abortions.”

At first, Verrilli seemed to deny it would, saying, “[T]he law now is to the contrary.”

Kennedy countered: “But your reasoning would permit that.”

Verrilli eventually said, “Well, I think that if it were for a for-profit corporation and if such a law like that were enacted, then you're right, under our theory … the for-profit corporation wouldn't have an ability to sue.”

Lawyers for both plaintiffs cited the exchange in their assessments of oral arguments.

“The justices were extremely concerned about the idea that just because a family tries to earn a living in business they abandon their constitutional and statutory freedoms,” said Matt Bowman, senior legal counsel for Alliance Defending Freedom (ADF). “I found it interesting that the justices also were very explicitly concerned about the notion that the government's position is so extreme that if they force families and businesses to provide abortions of any kind, even presumably surgical or late-term abortions, those families would not even be able to have a day in court to object.

“[T]hose are extreme positions on the part of the government,” he told Baptist Press.

“Ultimately, what the government is doing here is forcing people to buy abortion products for other people,” said Bowman, whose organization has represented Conestoga Wood. “And that unprecedented mandate — given at the same time that the government is exempting a hundred million people from it for secular, political reasons — can't be squared with the deference that we give in our country to religious freedom itself.”

Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which has represented Hobby Lobby, said, “I think the court had a lot of very hard questions for the government. The government essentially admitted the theory that they're offering in this case would support an abortion mandate.”

After Verrilli said there is no current law requiring for-profits “to provide abortions,” Chief Justice John Roberts cited the current case.

“Isn't that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions,” Roberts told Verrilli. “I thought that's what we had before us.”

Verrilli admitted it was the belief of the business owners but said federal and state law did not support a belief that the methods constitute abortion.

The regulation issued by the U.S. Department of Health and Human Services to implement the 2010 health care law requires coverage of federally approved contraceptives, including the IUD intrauterine device and such drugs as the morning-after pill Plan B. Both the IUD and morning-after pill possess post-fertilization mechanisms that can cause abortions by preventing implantation of tiny embryos. The rule also covers “ella” which — in a fashion similar to the abortion drug RU 486 — can act even after implantation to end the life of the child.

While some conscientious objectors to the HHS rule oppose underwriting all contraceptives, Hobby Lobby and Conestoga Wood protest paying only for abortion-causing drugs.

Roberts, Kennedy and associate justices Samuel Alito, Antonin Scalia and Stephen Breyer seemed suspicious of Verrilli's arguments, but justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg repeatedly challenged Paul Clement, who represented the businesses.

Kagan told Clement, solicitor general under President George W. Bush, the corporations have another choice — they could refuse to provide health insurance and pay the $2,000 tax per employee.

“Well, just to put this in concrete terms, for Hobby Lobby, for example, the choice is between paying … a $475 million per year penalty [for refusing to abide by the mandate] and paying a $26 million per year [tax],” Clement said. “You have a government law that specifically says you must do something that violates your religion — and it's enforced with a penalty, and with all due respect I think $2,000 per employee is a penalty.”

Kagan disagreed, saying, it is “not saying you must do something that violates your religion. It's giving you a choice. You can do this thing or if this thing violates your religion you can do another thing.”

After the arguments, Hobby Lobby co-founder Barbara Green said in a written statement her family had built the business based on the Greens' Christian faith and wants “to continue to live out our faith in the way we do business.”

“We believe that no American should lose their religious freedom just because they open a family business,” she said, adding, “[W]e prayerfully await the justices' decision.”

Anthony Hahn, chief executive officer of Conestoga Wood, said his family never expected to see a time when the government “would force us to be complicit in the potential destruction of human life.”

“We didn't choose this fight,” Hahn said in a written statement after the arguments. The Hahns, Greens and others, he said, “would have been happy to just continue providing good jobs and generous healthcare benefits. But the government forced our hand. We hope and pray that the Supreme Court will uphold the religious freedom of all Americans who seek to glorify God even as they go about making a living.”

Ilyse Hogue, president of NARAL Pro-choice America and a leading supporter of the HHS mandate, told reporters outside afterward, “We will not have our rights extinguished. Our bodies are not our bosses' business.”

The plaintiffs' lawyers expressed encouragement after the arguments.

“I won't make guesses, but it felt like a good day,” Rienzi said outside the court. “It felt like they asked really good questions, and we're happy with it.”

Bowman added, “I'm hopeful. I'm a Christian, and I'm hopeful.”

Planned Parenthood Federation of America President Cecile Richards expressed optimism as an advocate for the mandate.

“It was a wonderful day I think for women, and I really believe that this court understood that women have the right to make their own decisions about their health care and their birth control, and it's not their bosses' decision,” Roberts told reporters.

Supporters of Hobby Lobby and Conestoga Wood have said religious free exercise for Americans is in the balance as the Supreme Court ponders its decision, which is expected to be issued before its term ends in late June or early July.

Russell D. Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, has described the case as “the most important religious liberty case in a generation.”

The decision “will set the tone for the next hundred years of church/state jurisprudence in this country,” he said. “If the federal government can force organizations and businesses to pave over their own consciences, to choose between being believers and being citizens, what will stop the government from imposing its will on anyone's conscience next?”

The justices heard arguments about the mandate after more than two and a half years of protests by pro-life and religious freedom advocates. Objections to the regulation failed to produce either a withdrawal from HHS or adequate conscience protections requested by religious liberty proponents.

HHS provided an exemption to the rule for churches and their auxiliaries. The administration also offered an accommodation for non-church-related religious organizations, but critics called it inadequate because it still forces such groups to provide access to the drugs through third parties.

More than 300 parties, including non-profits and for-profit corporations, have combined to file 94 lawsuits against HHS, according to the Becket Fund. The consolidated case the justices heard March 25 only involves for-profit businesses. The non-profit cases have yet to reach the high court.

The case arrived at the Supreme Court after divided opinions at the appellate level. The Third Circuit Court of Appeals in Philadelphia ruled against Conestoga Wood, saying for-profit, secular organizations “cannot engage in religious exercise.” In ruling for Hobby Lobby, however, the 10th Circuit Court in Denver rejected the Obama administration's argument that protections under the 1993 Religious Freedom Restoration Act do not extend to for-profit companies. It ruled corporations “can be 'persons' exercising religion for purposes” of the RFRA, which requires the government to have a compelling interest and to use the least narrow means to burden a person's religious exercise.

The ERLC signed onto a friend-of-the-court brief filed by the Christian Legal Society in support of Hobby Lobby and Conestoga Wood. Also among the 59 briefs supporting Hobby Lobby and/or Conestoga Wood, according to the Becket Fund, was one signed onto by Southeastern Baptist Theological Seminary; its president, Daniel Akin, and Rick Warren, pastor of Saddleback Church, a mega Southern Baptist congregation in Lake Forest, Calif.

The Green family has said it will not comply with the mandate if it loses in court. The arts and crafts retail chain of more than 600 stores could face fines totaling $1.3 million a day. The Christian bookstore chain Mardel, also owned by members of the Green family, is part of the suit as well. Both are based in Oklahoma City.

The Hahn family has been living under the mandate since its group health plan was renewed in January 2013. Refusal to abide by the mandate could cost the family an estimated $95,000 a day. Conestoga Wood is a wholesale manufacturer of kitchen cabinet parts.

Original story posted here.

By / Mar 23

In 1 Timothy 2:1, Paul instructed Timothy

First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all people, for kings and all who are in high positions, that we may lead a peaceful and quiet life, godly and dignified in every way. This is good, and it is pleasing in the sight of God our Savior,

We are asking you pray on behalf of our friends at HobbyLobby, the craft chain giant that is well known for operating according to the Christian principles of its owners, Jackie and Steve Green.

On Tuesday at 10:00 a.m. ET, the Supreme Court will hear oral arguments in two very important cases involving religious liberty and the freedom of conscience. Before the Court are Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

We are inviting you to join other organizations and churches to encourage people to pray for the Hobby Lobby Case on Tuesday. You can help us spread the word by changing the avatar on your social media accounts and posting with the hashtag #PrayForHobbyLobby.

The owners of Hobby Lobby and Conestoga Wood Specialties believe their religious liberty has been infringed due to the federal government’s “HHS Mandate,” a provision of the Affordable Care Act that requires all businesses to provide their employees with access to insurance plans that include contraception, abortion-inducing drugs, and sterilization.

These requirements conflict with the religious beliefs of many business and organizations, whether for-profit or non-profit, such that they feel they cannot—in good conscience—comply with government law. What’s really at stake is whether an individual can run his or her business according to the principles of their faith.

As Christians who live all of life under the lordship of Jesus Christ, we are compelled to bring our vocations under the direction of our faith. The owners of Hobby Lobby and Conestoga are making their complaint under the umbrella of the Religious Freedom Restoration Act, a bipartisan law designed to provide extra layers of protection for citizens who believe their religious liberty has been infringed.

This is a supremely important case, and will likely set a precedent for how religious liberty is thought of and prioritized for decades to come. Because religious liberty is a bedrock constitutional principle found in the First Amendment, the integrity of this “first freedom” isn’t limited just to Christians, but to Americans of all faiths.

For that reason, Christians should pray that the outcome of these cases would result favorably toward those who wish to exercise their constitutional right to religious liberty. How should Christians pray? Here is a sample prayer guide:

  • God wants people to be free to seek him and to serve him (Acts 17:24-28). Pray for a favorable outcome. The cherished principle of religious freedom should receive the strongest constitutional protection it deserves.
  • God is Lord of the conscience, not government (Acts 5:29). Pray that the justices of the Supreme Court will understand the importance of the separation of the state from the church.
  • God can give understanding to make sound decisions (Prov. 2:6-8). Pray for those who disagree with us, that God would help them understand and respect the consciences of people of faith.
  • God can turn the hearts and minds of the justices to do his will (Prov. 21:1). Pray for the Supreme Court justices, that they would be receptive to the arguments being made passionately before them.
  • God can guide the mind and speech (Exod. 4:11-12). Pray for lead attorney, Paul Clement, who will be arguing on behalf of Hobby Lobby and Conestoga Wood. Ask God to give him clarity and wisdom, for his arguments to be persuasive, and for God to give him favor before the justices.  

Here are some excellent resources:

By / Mar 23

WASHINGTON (BP) — The fate of religious freedom for Americans, especially business owners, could hang in the balance when the U.S. Supreme Court convenes March 25.

The justices will hear oral arguments that day in challenges by two family owned corporations to the Obama administration's abortion/contraception mandate, which requires employers to provide abortion-causing drugs for their workers. Hobby Lobby, a nationwide retail chain based in Oklahoma City, and Conestoga Wood Specialties, a Pennsylvania business, contend the federal regulation violates their owners' consciences and a 1993 law protecting religious liberty.

Religious freedom advocates predict the Supreme Court's decision will be far-reaching.

The high court's opinion “will determine the next 100 years of church/state jurisprudence,” said Russell D. Moore, president of the Southern Baptist Ethics & Religious Liberty Commission.

Joshua Hawley, a lawyer assisting Hobby Lobby, described it as “a landmark case.”

“It has major significance for religious liberty” and “for what constitutional rights business owners can claim,” said Hawley, a member of the Becket Fund for Religious Liberty's legal team and an associate professor at the University of Missouri School of Law.

Matt Bowman, senior legal counsel for the Alliance Defending Freedom, explained to Baptist Press the consequences for not only the Green family, the evangelicals who own Hobby Lobby, and the Hahns, the pro-life Mennonite family that owns Conestoga Wood, but other people who seek to exercise their religious beliefs.

“If the Hahn and Green families lose, the door would be open to allow the government to force people of faith to pay massive fines threatening jobs and health coverage just simply because they are choosing not to violate their faith and conscience,” Bowman told BP in an email interview. 

“If the Hahn and Green families win, it will protect religious liberty as promised in the Constitution and American law, and people of faith will not be subject to massive fines just because they don't want to help destroy human life.”

The arguments at the Supreme Court will arrive after more than two and a half years of protests by pro-life and religious freedom advocates. In implementing the 2010 health-care reform law, the Department of Health and Human Services announced in August 2011 a proposed rule requiring employers to pay for coverage of contraceptives, including ones that can induce abortions. Objections to the regulation failed to produce either a retraction from HHS or adequate conscience protections requested by religious liberty proponents.

More than 300 parties — some nonprofit organizations and some for-profit corporations — have combined to file 94 lawsuits against HHS in the meantime, according to the Becket Fund. The consolidated case the justices will hear March 25 involves for-profit businesses. The nonprofit cases have yet to work their way up to the high court.

While some conscientious objectors to the HHS rule oppose underwriting all contraceptives, Hobby Lobby and Conestoga Wood protest paying only for abortion-causing drugs. Federal appeals courts reached different conclusions last year in the lawsuits. The Third Circuit Court of Appeals in Philadelphia ruled for the federal government in Conestoga Wood's challenge, while the 10th Circuit Court in Denver sided with Hobby Lobby.

The principle involved in the case is rooted in theology and America's founding, Moore said.

“The government doesn't grant us religious liberty; God does,” he told Baptist Press in a written statement. “The government is to recognize that God-given natural right for all persons to freely exercise their religious convictions. 

“What's at stake is the heritage our forefathers bought with their blood,” Moore said. “More than that, what's at stake is the truth that God alone, and not Caesar, is Lord of the conscience.”

A major question the Supreme Court will consider in the case is whether owners of for-profit companies can exercise their religion in the conduct of their businesses. A divided three-judge panel of the Third Circuit Court ruled that for-profit, secular organizations “cannot engage in religious exercise.” The 10th Circuit in Denver rejected the Obama administration's argument that protections under the 1993 Religious Freedom Restoration Act do not extend to for-profit companies. It ruled corporations “can be 'persons' exercising religion for purposes” of RFRA.

The U.S. Constitution and RFRA protect people of faith in their business practices, according to the Alliance Defending Freedom and the Becket Fund.

The federal government “asserts that when people of faith try to earn a living in business, they lose freedom to act consistent with their faith,” said Bowman, whose organization, ADF, represents Conestoga Wood. “But Americans do not give up their freedoms when they open a family business, and no American family should be forced to choose between following their faith and submitting to unlawful and unnecessary government mandates.”

Hawley said in an interview with The Pathway, newsjournal of the Missouri Baptist Convention: “You don't lose your free exercise rights when you open a business in this country. That's never been the law. That's not what the Constitution says. Business owners have a right to run their businesses in accord with their religious convictions just like everybody else.”

The Religious Freedom Restoration Act — which requires the government to have a compelling interest and to use narrow means to burden a person's religious exercise — also guards the rights of for-profit owners, Hawley said.

The Becket Fund's argument “is that the government does not have a compelling interest in forcing business owners to provide these abortion-inducing drugs,” he said. “They haven't pursued their interests in the appropriate way. And, therefore, since it violates the Greens' religious faith they can't make it stick under this law.”

The SBC's Ethics & Religious Liberty Commission signed on to a friend-of-the-court brief filed by the Christian Legal Society in support of Hobby Lobby and Conestoga Wood. Also among the 59 briefs supporting Hobby Lobby and/or Conestoga Wood, according to the Becket Fund, was one signed on to by Southeastern Baptist Theological Seminary; its president, Daniel Akin; Southern Baptist mega-church pastor and author Rick Warren; Southern Baptist professors; and at least one other Southern Baptist pastor.

Also filing briefs for the businesses were congressional members from both political parties, 20 states, women's organizations, constitutional law scholars, Roman Catholic theologians, the National Religious Broadcasters, Council for Christian Colleges and Universities, National Association of Evangelicals, U.S. Conference of Catholic Bishops, Democrats for Life and Christian Medical Association.

The 23 briefs filed in opposition to the two businesses, according to the Becket Fund, included more than 100 Democratic members of Congress, 16 states, the ACLU and Freedom From Religion Foundation. 

The HHS regulation 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 even 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. 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.

Hobby Lobby's Green family has said it will not comply with the mandate if it loses in court. The arts and crafts retail chain of more than 600 stores could face fines totaling $1.3 million a day. Hobby Lobby seeks to honor God “by operating the company in a manner consistent with Biblical principles,” according to its statement of purpose. Its stores are closed on Sundays. 

The Hahn family, which owns Conestoga Wood, has been living under the mandate since its group health plan was renewed in January 2013. Refusal to abide by the mandate could cost the family an estimated $95,000 a day. Conestoga Wood is a wholesale manufacturer of kitchen cabinet parts.

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.

The high court is expected to issue a decision before the end of its term in late June or early July.