Historic Win for Religious Liberty in Hobby Lobby: What It Means Today and in 2016

WASHINGTON, D.C. — On June 30, the Supreme Court held 5-to-4 that President Barack Obama’s HHS contraceptive mandate violates the Religious Freedom Restoration Act (RFRA). Although the ruling in Burwell v. Hobby Lobby only applies to a relatively small number of employers, the challenge was brought exclusively for that purpose, and its broad implications are a resounding victory for the challengers.

As Breitbart News previously reported, this was a challenge brought by two Christian-owned businesses: Hobby Lobby, represented by the Becket Fund, and Conestoga Wood Specialties, represented by Alliance Defending Freedom (ADF).

The Affordable Care Act (ACA) requires employers providing insurance to include “preventive care.” Justice Samuel Alito wrote for the Court that “Congress itself, however, did not specify what types of preventive care must be covered.”

The Obama administration declared through executive action that “preventive care” encompasses birth control, including four types that actually cause abortion by terminating an embryo. Hobby Lobby and Conestoga objected on religious grounds and filed suit.

Their owners seek to run their businesses consistent with their Christian beliefs. For example, Hobby Lobby’s statement of purpose includes “honoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.”

What the Supreme Court Decided

As Alito began for the five-justice majority consisting of the Court’s conservatives and moderates:

RFRA prohibits the Government from substantially burdening a person’s exercise of religion even if the burden results from a rule of generally applicability unless the Government demonstrates [it]… (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Alito explained, “RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required” under the First Amendment’s Free Exercise of Religion Clause. (Conservative scholars argue the Court has interpreted the Free Exercise Clause more narrowly than its original meaning, and that RFRA just restores the original protections.)

The Supreme Court began by holding that organizations can assert RFRA claims, reasoning:

Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It includes corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends…

Such legal protections are not an end in themselves, though. As Alito further explained:

When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people… And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

The Court noted that Congress provides in the very first section of federal law, 1 U.S.C. § 1, that “person” includes corporations and other business forms. Therefore these companies could assert RFRA claims, and the Court proceeded to decide the merits of the case.

Alito quotes previous Court precedent, which held that “the exercise of religion involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious purposes.”

Evidently realizing that the Court was unlikely to rule that no corporations could exercise religion—since most churches and synagogues are incorporated—the Obama administration had argued that if such protections exist at all, they only exist for nonprofit organizations. Alito brushed aside that argument, showing many examples of corporate law to prove neither Congress nor the Supreme Court have ever recognized any difference denying protection to for-profit companies.

Finally, HHS argued that it is difficult or impossible “to ascertain the sincere beliefs of a corporation.” Alito responded that the Court was not today considering publicly-traded companies—for which it might be more difficult to determine the corporation’s beliefs—and was only ruling on companies that are closely held by a family or small group of owners who all share the same religious faith.

The Court then considered the religious beliefs at issue, writing:

As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.

As to the consequence of that decision, the Court found, “If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe.” Specifically, the fines would be $1.3 million per day for Hobby Lobby—$475 million per year.

Having held that the regulation was a substantial burden on the companies’ (and owners’) religious beliefs, the justices then considered whether the HHS contraceptive rule fails RFRA’s “strict scrutiny” test of being the least restrictive means to achieve a truly compelling public interest.

The Court rejected the argument raised by some outside groups in amicus (“friend of the court”) briefs that since the penalty for not providing insurance at all is $2,000 per employee, per year, that these two companies should do that instead.

Alito responded, “We doubt that the Congress that enacted RFRA—or, for that matter, the ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.”

In the only aspect of the opinion that would disappoint conservatives, the majority continued, “We will assume that the interest in guaranteeing cost-free access to… contraceptive[s]… is compelling within the meaning of RFRA.”

It’s possible one of the five justices disagreed with the others on that point. So by assuming this point without deciding it, the Court did not issue any holding that would be binding precedent in a future case or in the lower courts.

But moving on the second prong of what RFRA requires, the Court found the HHS contraceptive mandate lacking:

The least-restrictive means standard is exceptionally demanding, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases.

If nothing else, the federal government could provide these four drugs itself:

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.

Therefore HHS’s contraception mandate was not “narrowly tailored”—that is, the least restrictive means—of ensuring birth-control access. So it is illegal under RFRA.

Justice Anthony Kennedy fully joined the Court’s opinion, but wrote separately to emphasize a couple points:

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.

Yet with a statement that will infuriate constitutional lawyers and scholars seeking to predict how he will act in future cases, Kennedy then moderated his rhetoric, saying:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.

Justice Ruth Bader Ginsburg wrote the primary dissent for the four liberal justices. She began, “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

To that point, Kennedy goes out of his way in his concurring opinion to begin it with, “At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it” by Ginsburg.

But the 81-year-old leader of the Court’s liberal wing was not done, as Ginsburg added: “The Court does not pretend that the First Amendment’s Free Exercise Clause demands religious-based accommodations so extreme, for our decisions leave no doubt on that score.” Future cases may ask the Court to reconsider those decisions.

She concludes her dissent, “I would confine religious exemptions under [RFRA] to organizations formed for a religious purpose, and not engaged substantially in the exchange of goods or services for money…”

To this, Alito in his majority opinion responds that “the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself.” He concludes, “The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”

What this Means for the Future—Including 2016

There are many implications for this decision.

First, it reaffirms the very broad reach of RFRA to protect religious liberty against federal power. It does not apply to the states (the Supreme Court rightly—and unanimously—held in its 1997 case City of Boerne v. Flores that any application of RFRA to the states would violate the Fourteenth Amendment), but it can be asserted against any regulation or executive action from the Obama administration or future presidents.

Second, it bodes well for other HHS contraceptive mandate challenges pending in the lower courts. Entities like the University of Notre Dame (full disclosure: my alma mater), the Little Sisters of the Poor (Catholic nuns), and the organization of Evangelical leader Dr. James Dobson all have pending challenges.

They object to having to certify that they religiously object to birth control in order to qualify for the religious-organization exemption to the mandate, because signing the certification transfers the mandate to an insurance company that then must pay for the same coverage.

These institutions thus argue that forcing them to sign the certification to avoid the mandate is a substantial burden on their faith, because they thereby obligate someone else to still pay for something those religious institutions consider participating in abortion. Although yesterday’s Hobby Lobby decision does not guarantee victory in these other challenges, it shows a majority of the Court is sympathetic to such arguments.

Third, it continues the trend it began with its Hosanna-Tabor case in 2012 (another Becket base) and on May 5 of this year in Town of Greece v. Galloway (another ADF case) of giving broad scope to religious liberty as a fundamental right.

This may all come to an epic battle in 2015, when the Supreme Court is likely to finally take Mt. Soledad Memorial Association v. Trunk, the case over the Latin cross atop the San Diego war memorial that the Supreme Court sent back to the Ninth Circuit federal appeals court yesterday for one final hearing. The petitioner there is represented by Allyson Ho of Morgan Lewis and Kelley Shackelford’s team at Liberty Institute.

And fourth, it shows there are five votes on the Supreme Court to consider additional challenges to Obamacare. The biggest regulatory challenge will be over the IRS subsidy rule for tax subsidies to purchase Obamacare insurance on state exchanges, without which the ACA is likely crippled. That issue is expected to reach the Court early in 2015. And there are also constitutional challenges to other parts of Obamacare as well, which would likely be offered to the Court by late 2015.

Media commentary casting this as anything other than a major victory for conservatives is either uninformed or deliberate spin. This was never a challenge to any other aspect of Obamacare; some such challenges are currently underway in the lower courts. This was a religious-liberty objection to a single Obamacare regulation, one in which an enormously important freedom—one of the fundamental freedoms upon which this nation was founded—was at serious risk.

And people of faith won. The only concern for people of faith is whether the membership of the Supreme Court will change in a faith-friendly direction in coming years, which will turn on whom the American people elect as president in 2016.

Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.




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Breitbart’s Michael Patrick Leahy: Education Key to Youth Vote

Breitbart News contributor Michael Patrick Leahy argued that educating young people about conservative ideals is key to winning over young voters in an interview on “The Laura Ingraham Show” on Tuesday. 

He stated “people who are millenials … generally support ideas of individual liberty … when you inform them of it, they become very passionate about it,” and argued that Dinesh D’Souza’s new movie “America: Imagine the World Without Her” is a key example of the kind of education that is needed. 

Ingraham added that she became involved in the conservative movement because of the articulate promotion of conservative values by Ronald Reagan, and argued that the conservative movement needs a similar spokesman. 

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New Poll Blow for Independent Scotland Campaign

Scottish voters are turning their backs on independence, with support for separation from the UK falling away. According to a new YouGov poll for the Times, support for a “yes” in September’s referendum has fallen three points to 39 percent, with one observer saying that Scottish First Minister Alex Salmond now needs a “game changer” to win the vote.

Also, in terms of whether Scots think they’ll be better or worse off after independence, only 27 percent think their country would be better off, while just 17 percent think they would be personally better off.

By comparison, 49 percent think Scotland would be economically worse off if it became independent, while 43 percent think they would be personally financially worse off.

These considerations could prove vital in determining how wavering and undecided Scots vote in September.

With support dropping below 40 percent, this will represent a huge psychological blow to the ‘yes’ campaign, with Alex Salmond still struggling to answer key economic questions about how an independent Scotland would function, including what currency it would use and how dependent it would be on North Sea oil.

John Curtice of the University of Strathclyde told the Times: “This is the worst result for “yes” from YouGov since before the currency intervention and it must be disappointing for the “yes” side. They must be looking for 43 per cent upwards and they are going backwards.

“As ever, it is about the economy, stupid. The Yes campaign has to persuade people that Scotland will be economically better off and people are no more convinced than they were after the publication of the White Paper. Until those numbers turn around, I can’t see them making it, really.

“It is going to be very, very difficult. It has looked difficult for quite a while. It needs a game changer, and where is that going to come from during the course of the summer?”




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Media Manipulation: How UCLA Cleared Itself of Using Race in Admissions

In the penultimate essay of this series, I discussed at length an internal report at UCLA that examined the university’s admissions decisions. The report, written by UCLA sociology professor Robert Mare, found evidence that UCLA had given preference to black students in its new “holistic” admissions process in 2007 and 2008, despite the prohibitions of California’s Proposition 209.

For instance, one part of the report estimated that slightly more than 33% of the black freshmen admitted to UCLA’s 2008 freshmen class would not have been admitted if they had not received preferences. 

Despite that evidence, on the day that UCLA released the report, the university posted on its web site a press release claiming that Mare’s report “found no evidence of bias in UCLA’s admissions process.” 

The latter statement is false. And I believe the cause of that falsehood is what I call “institutional dishonesty.” 

Specifically, as I detail more fully in my book, through euphemisms, strategic omissions, and editorial error, UCLA turned a true statement—that Mare’s report found evidence of racial bias–into its opposite. 

The error seems to have begun with Mare himself. Although he was completely honest in his statistical analyses, he spun his verbal descriptions of those analyses in minor ways to make UCLA look less bad. Most important, instead of calling his results “estimates of racial bias” or “estimates of racial preferences,” he called such estimates “disparities.” 

For instance, as I mentioned above, one aspect of his analysis estimated that, absent racial preferences, slightly more than 33% of black freshmen admitted in 2007 would not have been admitted. Here is the prose that Mare used to describe that estimate: “Absent the adjusted disparities estimated in this analysis, 121 fewer Black applicants would have been admitted, which amounts to more than 33 percent of the actual number admitted.” 

Compounding the confusion, at approximately the same time that UCLA released the Mare report, a faculty committee released a summary of the report. The official title of the committee is the Committee on Undergraduate Admissions and Relations with Schools (CUARS). 

The CUARS summary of the Mare report contains five paragraphs. The fourth and fifth are little more than boilerplate. The first three paragraphs, however, are more substantive. They summarize Mare’s report–except they cherry-pick from Mare’s conclusions. 

Specifically, the “executive summary” of Mare’s report contains nine bullet points. Three mention, albeit in cryptic ways, that Mare’s statistical analysis found evidence of racial bias. 

Yet the CUARS statement focuses only on three other bullet points, in which Mare explains that—despite the fact that the holistic system judged applicants partly by challenges and hardships they faced—the most important factors in UCLA’s admission system were ones of academic achievement, such as like grades and SAT scores. 

While Mare found significant evidence of racial bias, the CUARS statement did not mention that fact.  

Moreover, in Mare’s executive summary, just after the nine bullet points, he wrote the following sentence: “The holistic ranking process for Freshman admissions at UCLA appears to work much as intended.” 

Here, however, is the way the CUARS committee rewrote the sentence: “Professor Mare concludes that the Comprehensive Review ranking for UCLA freshman admissions functions in the manner intended by the faculty and the University.” 

Note that the committee removed the word “much” from Mare’s conclusion. 

Then, on the same day that CUARS released its statement, UCLA posted its press release, entitled, “Independent report confirms UCLA admissions process working as intended by faculty.” 

Like the CUARS statement, the press release removed the word “much” from the actual conclusion that Mare wrote. As I discuss above, the press release also claimed: “Mare’s report found no evidence of bias in UCLA’s admissions process.” 

The author of the press release seems to have relied heavily on the incorrect CUARS statement–perhaps merely through an editorial oversight.

Note that through a series steps, none of which can definitively be called a lie, UCLA staff and faculty distorted a true statement into its exact opposite. 

Remember, the distortion was the product of a highly esteemed university that, in theory, is one of society’s guardians of truth. 

Photo: Wikimedia Commons

Read all 13 parts of the series:




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US Court: Mexicans Can Sue Border Patrol Agent Who Killed Their Rock-Throwing Son

TUSCON, Arizona–The US 5th Circuit Court of Appeals ruled on Monday that the parents of Sergio Hernandez, a 15 year-old Mexican teenager who was shot and killed by Border Patrol Agent Jesus Mesa on June 7, 2010, could sue Mesa in US civil court for alleged excessive use of force. This was a reversal of the initial judgment made in Mesa’s favor in the lower Western District Court in El Paso, TX. 

Jesus Hernandez and Maria Guereca brought a total of eleven claims against the US government, Mesa, and several Border Patrol supervisors, according to the text of the Appeals Court ruling. The first seven claims were brought under the Federal Tort Claims Act, based on “multiple allegations of tortious conduct,” and the next two claims involved allegations that Hernandez’s Fourth and Fifth Amendment rights were violated. The key claim, however, was that Mesa was liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics through his “use of excessive, deadly force.”

According to the text of the ruling, on the day of the shooting in 2010, Hernandez was allegedly gathered with a group of “friends” on the Mexican side of a cement culvert that separated the Texas border city of El Paso and the Mexican city of Ciudad Juárez. Advocates for the group claim they were playing a game in which they would illegally cross onto U.S. soil, run up to the barbed wire border fence and then run back. Agent Mesa detained one of Hernandez’s friends (the ruling did not explain the circumstances), after which Hernandez retreated behind the pillars of the Paso del Norte international bridge. At some point, Mesa shot at Hernandez from the US side of the border into Mexico, hitting him in the face and killing him.

On April 27, 2012, the US Department of Justice issued a press release announcing it had closed the investigation into Mesa’s actions, and contained information that was markedly different than the court ruling. Along with several media reports, the release said a group of individuals were attempting to illegally cross the border and were throwing rocks at agents as a diversion. Mesa said he shot Hernandez in self-defense as he was being pelted while attempting to detain a border crosser. The Justice Department investigation revealed that Mesa “did not act inconsistently with CBP policy or training regarding use of force.” Although they couldn’t succeed in criminal court, Hernandez’s parents chose to pursue a lawsuit in civil court instead. Breitbart Texas Managing Director Brandon Darby previously reported how such rock attacks have caused serious bodily injury and risk of death to U.S. Border Patrol agents.

The 5th Circuit Court ruling affirmed the District Court’s decision that the claims brought against the US government and Border Patrol supervisors should be dismissed, but reversed the dismissal of the claim against Mesa. The Appeals Court stated Hernandez’s parents could assert a claim that their son’s Fifth Amendment rights were violated and they had “alleged sufficient facts to overcome qualified immunity.” According to USLegal.com, qualified immunity “protects public officials from being sued for damages unless they violated ‘clearly established’ law of which a reasonable official in his position would have known.” Furthermore, it “aims to protect civil servants from the fear of litigation in performing discretionary functions entrusted to them by law.” 

The unfortunate precedent this sets for Border Patrol agents cannot be understated. All law enforcement officers are trained to deal with various kinds of threats, but those who work on the southwest border are working under unique conditions and stressors, along with the additional scrutiny that comes with regular interactions with foreign nationals. Few things place an agent’s life in danger more than the hesitation that comes with having to second-guess an action that has been ingrained to come as second nature through training. 

However, this is the side effect of an agent’s concern over being sued for taking defensive action that results in a loss of life. Shawn Moran, Vice President of the National Border Patrol Council, told the Los Angeles Times in June that the union has vowed to oppose any measures that restrict the ability of agents to defend themselves. This was shortly after US Customs and Border Protection issued new use-of-force guidelines for agents, indicating (among many other things) that they should seek cover or move out of range in a rock-throwing incident whenever possible. Agents were also told “not to fire in response unless the projectiles are large enough to cause ‘serious physical injury or death.'”

As a result of the Appeals Court’s decision, Hernandez’s parents can now pursue a civil suit against Agent Mesa. The Court essentially stated that the Fourth Amendment—under which an excessive force claim is usually made—doesn’t apply to foreign nationals. However, those claims can be asserted as a violation of due process under the Fifth Amendment, which “does not limit the category of individuals entitled to protection,” unlike the Fourth Amendment

Sylvia Longmire is a border security expert and Contributing Editor for Breitbart Texas. You can read more about the challenges facing the US Border Patrol and other law enforcement agencies along our international borders in her new book, Border Insecurity: Why Big Money, Fences, and Drones Aren’t Making Us Safer.




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