Sonia Sotomayor and Other Female Justices Oppose Hobby Lobby's Claim of Violation of Religious Liberty if Forced to Offer Contraception to Employees
Associate Justice of the Supreme Court Sonia Sotomayor (first Hispanic justice and third female justice of the United States) as well as Elena Kagan and Ruth Bader Ginsburg spoke out on Tuesday during the Sebelius v. Hobby Lobby Stores, Inc. case, where the company that prides itself in pastime hobby product sales has claimed "corporations can have religious faith," and providing their employees with contraception is a violation of their "religious liberty," under the Religious Freedom Restoration Act (RFRA).
While at least three of the court's nine justices are unconvinced by the Hobby Lobby's claims, there was a visible divide in the court based on gender. The for-profit corporation citing religious objection in their refusal to include contraception in the basic health plan, now mandated under the Affordable Care Act, was something that seemed to better sit with male justices, who are less supportive of the contraception mandate.
The 500+ arts and crafts store has stumbled into a landmark case, one that deals with Affordable Care Act, religious freedom and women's right to contraception. The store's owners objected to two forms of contraception, IUDs and morning-after pills for its 13,000 employees, stating that they believe that it's a form of early abortion -- and a violation of their "religious liberty." Hobby Lobby argues, "religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception."
Sotomayor immediately began to question the corporation's lawyer about the consequences of corporate religion before Hobby Lobby attorney's Paul Clement began to speak on the company's position. She asked, if corporations were able to claim religious objection to provided contraception coverage, what would stop them from rejecting vaccinations, immunizations, medical products that include pork or blood transfusions.
Kagan then carried on from where Sotomayor left off by mentioning that many medical procedures are not legitimate practices under certain religions doctrines. She also stated that allowing corporations to make these decisions would mean that "Everything would be piecemeal; nothing would be uniform." She also hammered Clement on Hobby Lobby's claim under RFRA, an "uncontroversial law" that Hobby Lobby is attempting to use it to disrupt "the entire U.S. code." RFRA passed in 1993 with overwhelming bipartisan support, and its federal law aimed at preventing laws that substantially burden a person's free exercise of their religion. Kegan then observed that using that reasoning, some employers may have a religious protest to complying with sex discrimination laws, minimum wage laws, family leave laws and child labor laws, to name just a few.
Sotomayor had a no-holds-barred approach to question regarding for-profit corporation's exercise of religion, and who that religion belonged to: the shareholders? The corporate officers, perhaps? The business' dedication to religion and whether that corporation takes to measuring someone's religious beliefs?
Clement responded saying that all claims brought won't be won, but it's up to the court to "separate the sheep from the goats." Justice Ruth Bader Ginsburg noted that this case shows opposition to IUDs and morning-after pills, but others may want to fully reject all contraceptives, as some employers have. Clement conceded, agreeing that all contraceptives could be excluded on religious grounds.
Justice Anthony Kennedy seemed concerned with the precedence that the decision will be making for abortion being funded by corporations, according to Ian Millhiser of ThinkProgress. Kennedy, unlike Hobby Lobby, doesn't believe that the subject of the case is abortion, but that allowing access to emergency contraception will possibly lead to a future law where Hobby Lobby will be made to pay for abortions. However, Kennedy did not weigh in on whether he felt that the non-abortion methods were the same as actual abortions, instead "gazed upon a requirement to buy health insurance and imagined the government forcing everyone to buy broccoli."
Kennedy did inquire about the consequence for employees if employers were able to impose their religious beliefs on them, and was interested in the question of rights of employees rather than the rights of employers. He continued to ask questions from a variety of perspectives, playing both the devil's advocate and his potential destroyer.
Government's chief advocate, Solicitor General Donald Verrilli, stated that federal laws that ban funding for abortions do not consider these methods to be abortion, and that IUDs and morning-after pills are legal contraception methods approved by the FDA. He also stated that churches are the only class of corporations that are granted exemption from the provisions of the law.
Justice Stephen Breyer suggested that the government could pay for the contraception coverage as to lessen restrictions of the owner's rights. Justice Antonin Scalia stated that contraception wasn't very expensive, and Verrilli responded that IUDs were the most expensive method of contraception, costing somewhere between $500 and $1,000. He also stated that even if the government did pay for it, corporations with religious objections would say that signing the forms attesting to their objections would make them "complicit."
Justice Samuel Alito rejected Verrilli's argument, asking why for-profit corporations couldn't claim that their religious rights were being infringed, and maintained his pointed by bringing up a hypothetical: what if Congress passed a law barring kosher slaughter methods because it considered them inhumane? "Would an incorporated slaughterhouse have no recourse whatsoever?"
Alito's hypothetical followed Verrilli's repeated reference to a court's decision to declare that an Amish carpenter had to pay Social Security taxes for his employees, even though paying such taxes violated his religious beliefs.
Roberts suggested that even if the court ruled in favor of Hobby Lobby that would only affect closely held corporations, not large publicly traded companies, though Dell and Heinz are considered closely held companies.
Hobby Lobby founder and CEO David Green and his family are devout in their religious beliefs; the family has demonstrated its faith by closing stores on Sundays, continuously playing religious music for shoppers to listen to while purchasing macramé supplies, fabrics, baskets, silk flowers, needlework, picture framing, party supplies,and related supplies . The Green family is also working to build a "Museum of the Bible" in the nation's capital.
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