If you follow the news, politics or the courts at all, you’ve probably heard about the Hobby Lobby decision.  I’ve heard a lot of hype and hyperbole on both sides of this decision and wanted to discuss this decision from a purely Constitutional standpoint.

At it’s heart, the question in Hobby Lobby was can the government force a private company to violate the conscience of it’s owners.

Do corporations have religious freedom rights?

The first argument made was that since Hobby Lobby and the other companies who filed suit are for profit corporations they do not have religious freedom rights.  The logic behind this is that only a person can have a religious freedom right.  Unfortuantely for those with this point of view are two very important facts.

1.   According the U. S. Law (1 USC 1) the word person includes corporations.

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; 

2. Corporations are mearly a legal concept to allow persons (who have religious freedom rights) to oragnize.

Does the government have a compelling interest in having birth control provided for?

In order to help protect religious freedom, the Religious Freedom Reformation Act (RFRA) was passed into law.  Under RFRA, in order for the government to infringe on a persons religious freedom there are several test, the first of which is that the government must show a compelling interest.  In the majority opinion, Justice Alito assumed that the government, simply by createing regulations, has a compelling interest.  So tell me, what compelling interest does the federal goverment have in forcing some people to pay for the birth control of others?  Notice, I’m not talking about an interest in making birth control affordable, available or determining whether or not a doctor needs to proscribe it.  No, the assumption is that just because the goverment put forth regulations, they have a compelling interest in making one group of people pay for anothers birth control just because the people in power say so.  That is not liberty, nor is it a republic, that is a totalitarian regime.  In fact, according to the Constitution, the government has no compelling interest in making healthcare or health insurance decisions for Americans.  It seems this basic fact of our republic is lost on our government officials in Washington.

Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement.

Supreme Court of the United States opinion in BURWELL v. HOBBY LOBBY STORES, INC.

The second test for RFRA is, has the government used the most restrictive means possible to further it’s compelling interest.  Since the executive branch had created multiple exceptions to the HHS mandate, it is rather obvious that there were other means, less infringing on the rights of the plaintiffs.

42 U.S. Code § 2000bb–1 – Free exercise of religion protected

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

I thought this was a freedom of religion case?

The question of the HHS mandate being a violation of the first amendment wasn’t even decided.

The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.

The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceed- ings consistent with this opinion.

It is so ordered.

Basically, the court found that closely held corporations are protected by RFRA and thereby have religious freedom rights.

Generally, a closely held corporation is a corporation that:

  • Has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and
  • Is not a personal service corporation.

IRS Definition of closely held corporation

Since the government did not use the most restrictive means necessary, the method of furthering it’s compelling interest was unconstitutional.{jcomments on}

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