Court clash pits government v. conscience

SACRAMENTO — The U.S. Supreme Court is, according to many legal observers, likely to consider a complex legal tangle that focuses on a simple question: Are business owners free to follow their religious beliefs when they conflict with the expanding dictates of the government?

The main case involves a nationwide craft store known as the Hobby Lobby, which objects to the Affordable Care Act’s requirement that it provide certain types of contraceptives as part of the health plan the company offers its 22,000 employees.

It is owned by evangelical Christians who see their business as an extension of their religious faith. Hobby Lobby already covers contraceptives in its insurance plan, but it objects to including “drugs and devices (they) … believe to be abortifacients,” explained the 10th Circuit Court of Appeal in a decision siding with the company.

Federal officials and state attorney generals, including California’s Kamala Harris, urged the court to take the case and side – no surprise here – with the government. Harris essentially is asking the court to place the “compelling interests in public health and gender equality,” as her brief put it, above religious values when it comes to these health-care mandates.

Allowing the 10th circuit decision to stand, she explained, “would render broad areas of state regulation vulnerable to challenge.” That’s because the specific issue centers on “for profit” companies – not just those nonprofit religious groups that already gain exemptions from this and some other laws. This could vastly expand the exemptions. But shouldn’t business owners be allowed to make such decisions for themselves, without interference from government?

“On one side, a family-owned business argues it shouldn’t be forced by the government to participate in practices that violate deeply-held religious beliefs simply because it makes a profit; on the other side, the government argues legally-mandated employee benefits shouldn’t be lost simply because one’s employer has religious objections,” said James Sonne, director of the Religious Liberty Clinic at Stanford Law School.

He thinks the court is likely to intervene because of conflicting decisions from appeals courts in some cases addressing this same question.

In 1990, the U.S. Supreme Court ruled that the Constitution’s free-exercise clause provides no protection against laws that are neutral – i.e., might affect religious liberty, but apply to everyone and were not intended to single out religious practices. The case involved Native Americans who ingested psychedelic peyote as part of their ritual.

Congress reacted by passing the Religious Freedom Restoration Act (RFRA), which requires the government to meet a rigorous standard before it can “substantially burden” a person’s religious exercise. The Hobby Lobby case centers on whether the government has met that standard here, and whether a commercial enterprise is a “person” in the context of RFRA, explained Alan Brownstein, a University of California-Davis law professor.

The government claims it’s too important of a law to allow an exception even though it already has granted many exceptions, he added. That weakens its case. The government’s best argument is that corporations could make sham religious claims to evade compliance with legitimate rules, he said. But he tosses out the possibility of an accommodation – some rules that, say, allow certain religious-based closely held companies to opt out of some regulations.

Such an approach would leave the constitutional issues murky, though.

“The government is trying to build a wall of separation between what people learn in their church or temple on the weekend and what they do on Monday,” said Adele Keim, counsel for the Becket Fund for Religious Liberty, which represents Hobby Lobby and eight other companies. “They have no basis for that in the text of the First Amendment or the text of RFRA,” she told me.

It’s anyone’s guess what the high court might do with the conflicting decisions and various legal questions. But it’s clear why Harris and other regulation supporters don’t want to accede to those who believe that their religious obligation extends to corporate life. They say it can open the “floodgates” for religious challenges of the rules they champion.

We shouldn’t get buried by complexity. This case is about a question that harkens back to the nation’s founding. When the individual’s conscience collides with the government’s rules, who wins? No wonder this issue is garnering so much attention.

Steven Greenhut is the California columnist for U-T San Diego. Write to him at