WASHINGTON — Eleven Republican members of Congress filed a brief supporting conscience provisions in one lawsuit fighting the U.S. Department of Health and Human Services' contraceptive mandate.
In their friend-of-the-court brief, filed Feb. 21, the congressmen invoked the Religious Freedom Restoration Act in supporting the Hobby Lobby craft store chain in its bid for an exemption from the mandate.
The Religious Freedom Restoration Act was passed 20 years ago – unanimously in the House, and by a 97-3 vote in the Senate – to prohibit the federal government from substantially restricting a person's religious freedom, except when it can demonstrate "a compelling government interest" and that the government's action is "the least restrictive means" of furthering that interest.
All 11 lawmakers filing the brief had voted for the bill, known as RFRA, in 1993; it was signed into law by President Bill Clinton.
The law was passed to counter a 1990 Supreme Court ruling that the religious rights of two American Indians to smoke peyote during a religious ceremony were superseded by an Oregon state law making the hallucinogenic substance illegal.
"One of the primary reasons Congress enacted RFRA in the first place (was) to prevent those charged with implementing the law from picking and choosing whose exercise of religion is protected and whose is not," the lawmakers' brief says.
"RFRA is a super-statute that protects the free exercise of religion from standard interest-group politics," the brief added, noting the overwhelming majorities in both houses of Congress that passed it.
Under the Affordable Care Act, HHS mandates that most employers, including religious employers, provide insurance coverage of contraceptives, sterilization and some abortion-inducing drugs free of charge, even if the employer is morally opposed to such services.
Much of the protest over the mandate in the past year has come from religious institutions over what they consider a too-narrow definition by HHS of religious entities are exempt: only those that seek to inculcate their religious values, primarily employ people of their own faith and serve people of their own faith. The mandate does not include a conscience clause for employers who object to such coverage on moral grounds
Dozens of religious entities have sued suing the federal government, which responded Feb. 1 with new proposed rules that exempts organizations that are nonprofit organization under specific sections of the Internal Revenue Code.
No exemption, however, will be given to "for-profit, secular employers" who, on moral grounds, object to providing the coverage, such as Hobby Lobby.
The proposed revision has left many still unhappy, including the U.S. Conference of Catholic Bishops, because it does not go far enough to include secular employers with moral objections.
The lawmakers' brief contends that HHS erred in trying to define who constitutes a religious employer.
RFRA was designed "to cut across other federal laws," the brief said, noting its "across-the-board protection for free exercise of religion; and the statute's provision of a judicial backstop." RFRA, it added, applies "to all federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after Nov 16, 1993," the date it was signed into law.
"The primary operative section of RFRA sets forth a general rule that provides the same level of protection to all religious groups and to all exercises of religion," brief said, quoting from the act: "Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person … is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest."
Hobby Lobby is a privately held chain of 500 arts-and-crafts stores in 41 states founded in 1972 by David Green. The stores pipe in Christian music through their sound systems and are closed on Sundays.
In September, Hobby Lobby sued the U.S. government over the requirement employers cover emergency contraceptives such as the morning-after pill or Plan B, which are considered abortifacients. The family-owned company has no moral objection to the HHS requirement it cover "preventive contraceptives" and will continue to cover those for employees.
In December Supreme Court Justice Sonia Sotomayor denied Hobby Lobby's request for an injunction while it challenges part of the mandate in court, leaving the company subject to fines of more than a million dollars a day since Jan. 1.
That decision was appealed to the U.S. Court of Appeals for the 10th Circuit, whose territory includes the Oklahoma headquarters of Hobby Lobby.