By Bob Allen
The Southern Baptist Ethics and Religious Liberty Commission joined other faith groups in a Supreme Court brief filed Jan. 28 arguing that for-profit corporations cannot be forced to pay for employee insurance coverage of contraception if their owners object on religious grounds.
The brief, drafted by constitutional lawyer Douglas Laycock, who teaches at the University of Virginia School of Law, says the U.S. Supreme Court should affirm a lower-court’s ruling that the Southern Baptist owners of the Oklahoma City-based craft store chain Hobby Lobby are entitled to run their family business on Christian principles under protection of the Religious Freedom Restoration Act.
Laycock, regarded as a leading authority on religious-liberty law, was part of a broad coalition that came together in 1993 to secure passage of the landmark federal legislation aimed at making it harder for the government to restrict religious exercise.
Laycock said the legislative intent was to restore a standard in court rulings prior to 1990 that only governmental interests of the highest order could justify restrictions on the free exercise of religion guaranteed by the First Amendment.
He said Congress emphasized that RFRA was intended to “restore the compelling interest test … in all cases where free exercise of religion is substantially burdened.”
RFRA protects “a person’s exercise of religion,” Laycock said, whether or not that person owns a business. He said “person” in federal legislation includes both natural persons and “artificial” persons, including for-profit corporations, unless the context indicates otherwise.
Laycock said Congress twice rejected attempts to exclude corporations from the bill’s universal coverage, applying a single standard to all cases.
Laycock said the law holds individuals responsible for corporate wrongdoing, recognizing a principle that business owners are expected to feel morally responsible for the acts of the corporations they control.
He also appealed to a long history of “excluding religious minorities from significant businesses or occupations” as a “time-honored means of religious persecution, well known to the Founders.”
“In 18th-century Ireland, it was generally illegal for a Catholic to keep more than two apprentices,” Laycock said. “If your business grew to where you needed three apprentices, you were out of luck.”
He said Hobby Lobby President Steve Green, a member of Council Road Baptist Church in Bethany, Okla., who sincerely believes that certain forms of birth control such as “morning after” birth control pills and intrauterine devices are immoral, faces a similar dilemma with a requirement in the Affordable Care Act that employers must cover all forms of contraception approved by the FDA.
“If you take seriously the belief that a new human life begins at conception, and if your business grows to the point where you need to incorporate it, the government says you are similarly out of luck in this country,” Laycock said. “Violate your faith, or sell your business.”
The ERLC, the public-policy arm of the Southern Baptist Convention, joined the Christian Legal Society, Lutheran Church-Missouri Synod, The Church of Jesus Christ of Latter-day Saints, World Vision, Inc. and other diverse organizations in filing for the brief.
“We’re in this because religious liberty isn’t a government grant, but a human right grounded in the image of God,” said agency President Russell Moore. “Our Baptist forefather John Leland wasn’t content to trust politicians with tyranny over the conscience. We are his sons and daughters and we will carry the banner of soul freedom to the Supreme Court and beyond.”
Moore and the ERLC presented an earlier amicus brief last October asking the Supreme Court to review split decisions by lower courts on whether the Religious Freedom Restoration Act applies to corporations or only to individuals.
Yesterday’s filing was among more than 50 new court documents supporting the Green family’s challenge to the contraceptive mandate, according to the Becket Fund for Religious Liberty, a public-interest legal and educational institute that is handling their case scheduled for oral arguments before the Supreme Court March 25.
On the same day, Americans United for Separation of Church and State filed a brief on behalf of more than two dozen religious organizations asking the Supreme Court to rule that owners of secular, for-profit corporations do not have the right to deny their employees access to contraceptives on religious freedom grounds.
“The Supreme Court must reject a theory of religious freedom that allows employers to meddle in and control the private lives of their workers,” said Barry Lynn, executive director of Americans United and an ordained minister in the United Church of Christ.
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