1993 religious act at heart of contraception case

WASHINGTON — When the Supreme Court confronted the case of Native Americans who were fired for smoking an illegal drug during a religious ceremony, Justice Antonin Scalia called a halt to granting religious exemptions under the Constitution’s protection for the “free exercise” of religion. It “would be courting anarchy” to permit “religious objectors” to ignore the law, he said.

But Democrats in Congress rose up to overturn his decision and to bolster religious freedom.

Backed by a broad coalition, including the American Civil Liberties Union and the Christian Legal Society, the Religious FreedomRestoration Act became law 20 years ago this month. It declared that the government may not “substantially burden a person’s exercise of religion” unless it had a “compelling” reason to do so.

Now, that law is at the center of a major “religious liberty” challenge to President Barack Obama’s health insurance overhaul and its requirement that employers pay for full contraceptive coverage for their female employees.

Christian employers have gone to court, citing the 1993 law and saying they have a religious objection to providing “abortioncausing” drugs like the “morning after” pill, winning before U.S. appeals courts in Denver and Chicago.

The appeals court judges relied on the Supreme Court’s much-disputed Citizens United decision that said corporations have the same right as people to make political contributions; they concluded that “for-profit corporations” can be considered “persons” with religious beliefs.

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” the 10th U.S. Circuit Court of Appeals said in ruling for Hobby Lobby Stores Inc., a nationwide chain of more than 500 crafts stores with 13,000 full-time employees.

Obama administration lawyers appealed the Hobby Lobby case to the Supreme Court, calling the decision incorrect andunwise. The justices are likely to hear the case and may announce their decision to do so as soon as Tuesday.

“We are at a scary moment in our history if they say there is a constitutional right to shape benefits based on the religious beliefs of the owners,” said Marci Hamilton, a Benjamin N. Cardozo School of Law professor and a critic of the religious freedom law. “Why isn’t this discrimination against women based on gender and religion?”

A high court hearing would put a new spotlight on an old and recurring question: When and under what circumstances can people cite their religious beliefs to avoid complying with the law? Because of the 1993 law, it would give the court’s conservatives, including Scalia, a chance to deal a blow to Obama’s health care law.

A lawyer for Hobby Lobby says the law made clear that religious beliefs are due special protection.

“We believe Americans don’t give up their religious freedom rights when they go into business,” said Lori Windham, an attorney for the Becket Fund for Religious Liberty.

The First Amendment says, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The Supreme Court has long said this means Americans are entirely free to hold religious beliefs and worship as they choose.

But they are not necessarily free to violate what Scalia called “neutral and generally applicable laws” because of a conflict with their religious faith.