January 28, 2014
The Ethics and Public Policy Center is today filing an amicus brief in the pending Supreme Court cases that present religious-liberty challenges to the Obama administration’s HHS mandate on contraceptives.
EPPC’s brief addresses, and thoroughly refutes, the Obama administration’s claim that for-profit corporations are inherently incapable of an “exercise of religion” for purposes of the protections afforded by the federal Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment. Among other things, EPPC shows that the Obama administration has no coherent basis for its position that nonprofit corporations and individuals engaged in commercial activities can be exercising religion but that for-profit corporations can’t be.
To download a pdf version of the brief, click here.
EPPC’s brief demonstrates that an amendment in 2000 to RFRA’s definition of “exercise of religion” broadly defines that term to cover a for-profit corporation’s exercise of religion. EPPC’s brief also highlights a House committee report that explicitly confirms that a “business corporation” can exercise religion. (Thus, the Obama administration is flatly wrong when it asserts in its opening brief that “‘any reference to for-profit corporations’ is ‘[e]ntirely absent from the legislative history.’”)
EPPC’s brief also shows that the Obama administration’s parade of horribles is imaginary, as very few companies will be able to demonstrate (as the companies challenging the HHS mandate do) a corporate adherence to a sincerely held religious belief. It is, instead, the Obama administration’s position that would have drastic consequences. As EPPC’s brief puts it:
“According to the Gov¬ernment, it can make any market for goods or ser¬vices a Free-Exercise-Free Zone simply by the artifice of placing whatever obligations it wants on corporate entities rather than on natural persons. In the Gov¬ernment’s view of the matter, an incorporated kosher deli could be forced to carry non-kosher goods; an in¬dependent Catholic hospital with a lay board could be required to provide abortions; a closely-held market owned by Seventh-day Adventists could be required to open on Saturdays; and an incorporated retail store owned by Muslims could be forced to carry liquor.”
EPPC extends its deep thanks to the authors of the brief, Daniel P. Collins and Enrique Schaerer of the law firm of Munger, Tolles & Olson, for their extraordinary work.