On Tuesday, from the questions they asked the lawyers making their cases, it looked as if the Supreme Court was favoring the Hobby Lobby and Conestoga Wood Specialties side in the suit against the Affordable Care Act and the provision that requires for-profit companies to provide contraception coverage for their employees via their healthcare plans. Because they do not personally believe in contraception, they do not want to pay their employees for contraception under the health care act. They claim it violates their religious freedom.
The Jewish Commission on Law and Public Affairs (COLPA) along with the Rabbinical Council of America (RCA), the Orthodox Union (OU), the Agudath Israel, Torah Umesorah, the National Council of Young Israel, the Rabbinical Alliance of America had Lewin & Lewin, the prestigious law firm in Washington, filed an amicus curiae brief, a friend of the court brief, on the side of Hobby Lobby and Conestoga. The firm specializes in religious law. What one discovers when one reads it, is that the Orthodox organizations are not at all concerned about contraceptives, which they admit in the brief, are permissible under Jewish law.
What they are concerned about is that the law as written can be used to force Orthodox Jews to keep their stores open on Shabbos or force haredim to serve people who aren’t wearing tznius clothing (shorts, décolleté, barefoot and sleeveless) in their stores. Such discrimination cases have already been brought against store owners in Williamsburg, Brooklyn. One case was thrown out of court (someone sued a Jewish store for being closed on Shabbos for discriminating against Christians), but the other was settled, after it was determined that the signs posted in Williamsburg shops about clothing didn’t discriminate against men or women or ethnic groups, just against the clothing they wore.
The Obama administration is arguing that for-profit companies are different than non-profit companies, which are exempt from providing contraceptive coverage. According to Reuters, several justices questioned why for-profit companies with religious objections were any different than non-profits.
The brief clearly states, “The Jewish faith does not prohibit the financing of contraception, which underlies the legal challenge in these cases. Judaism does, however, impose substantial conscientious faith-based restrictions on employers and other individuals in managerial positions. They are obliged, for example, by the Fourth Commandment and its rabbinic interpretation to set aside Saturday as the Sabbath and a day of rest for their employees.
“An observant Jew may not direct his or her employee—be the employee Jewish or gentile—to labor on the Sabbath. A federal governmental directive to a Jewish employer—be he the owner of a business operated for profit or the manager of a non-profit charitable entity—requiring the employer to have employees work on the Sabbath would substantially burden the Jewish employer’s religious exercise. It could not, under RFRA, be lawfully demanded unless the governmental interest were ‘compelling’ and satisfied the statutory ‘least restrictive means’ standard.
“The burden on the Jewish employer should not be entitled to greater constitutional and statutory protection if the employer is engaged in charitable work that qualifies under Section 501(c)(3) of the Internal Revenue Code than if he or she operates a for-profit business.
“Under Jewish Law the same religious prohibition that bars certain proscribed activity on the Sabbath in a for-profit business applies to non-profit activity. The religious sanction for violating the Sabbath is not reduced if the actor has a non-profit motive.”
The justices heard the arguments in an extended 90-minute session on Tuesday morning.
The case also touches on questions of corporate rights four years after the Citizens United v. Federal Election Commission case endorsed broad free-speech rights for companies in the campaign finance context. A ruling is expected by the end of June.
The case was originally filed by Hobby Lobby Stores Inc. and Mardel, a chain of Christian bookstores. Both are owned and operated by evangelical Christians. The other case was brought by a Mennonite family that owns a company in Pennsylvania, Conestoga Wood Specialties. The justices have to decide if the case falls under a 1993 federal law called the Religious Freedom Restoration Act (RFRA) and the First Amendment to the U.S. Constitution which guarantee religious freedom.
The government is backed by women’s rights groups, who say contraceptives should be widely available for public health reasons. [ID: nL2N0M724C] The challengers and their supporters, including a wide-range of religious groups, counter that the case is really about whether the government can force someone to violate their own religious beliefs.
Jay Michaelson, in a piece in The Forward wrote: “The answer—that no, it does not—is, in many respects, well established law. My liberty interest in saying the Lord’s Prayer at graduation does not allow me to compel a Jewish student to listen to it (Lee v. Weisman). My religious belief that the Bible demands racial segregation does not allow me to implement it at my nonprofit university (Bob Jones v. United States).”
Although Orthodox groups are supporting this law, the ADL, the National Council of Jewish Women and other Jewish establishment organizations are fighting against the position of the Orthodox organizations. But the Orthodox have joined with these evangelical, Catholic and other conservative religious groups on any number of issues, most particularly to lobby the government for funding for their parochial schools, and especially tuition relief in the form of school vouchers. Some observers say it is a matter of one hand washing the other.
Michaelson wrote, “Whatever their reasons, these Orthodox Jewish organizations are actively eroding the civil rights of all of us. And while they represent a minority of Jews, they provide ecumenical cover for conservatives desperately trying to maintain Christian hegemony in America.”
Yet others see this case as an attempt by conservatives to bring down the Affordable Care Act, because it concerns insurance paying for contraceptives for employees, which should be covered. But the people who brought the case object to only four types of birth control, types they believe abort a very early pregnancy: two types of intrauterine device (IUD), and two types of birth control pills called Ella and Plan B. In his brief to the Supreme Court, Paul Clement, the former George W. Bush administration solicitor general, who represented the business owners on Tuesday, wrote. “Respondents believe that human beings deserve protection from the moment of conception, and that providing insurance coverage for items that risk killing an embryo makes them complicit in abortion.”
But many doctors disagree and say these contraceptives do not interrupt a pregnancy—they prevent conception in the first place.
“A common misconception is that emergency contraception causes an abortion. Inhibition or delay of ovulation is the principal mechanism of action,” said the American College of Obstetricians and Gynecologists. The Food and Drug Administration said, “A contraceptive intrauterine device (IUD) is a device used to prevent pregnancy.”
Cecile Richards, President of Planned Parenthood Action Fund, these business owners wrongly believe that these forms of birth control work after conception she told reporters: “You get to pick your opinion. You don’t get to choose your facts,”
Many who protest Hobby Lobby say the case exposes a slippery slope that would allow employers to deny coverage for vaccines or blood transfusions. Civil rights groups say it’s the same thinking that people once used to justify racial discrimination.
But the families who own Hobby Lobby and Conestoga and their backers argue, it’s been perfectly legal up to now for business owners to deny coverage for vaccines or blood transfusions, but that they don’t do that. Mark Rienzi, a law professor at Catholic University and for the Becket Fund who filed a brief on behalf of Hobby Lobby and Conestoga said, “Virtually all businesses are fine with the contraceptive mandate. It’s only a tiny percentage that sued.”
Despite the questions asked on Tuesday morning, no one can really tell what the court will decide. The women on the court, more liberal than their male counterparts, asked questions about potential effects on employers; rights to opt out of paying for all sorts of health care, or even the minimum wage. And Justice Anthony Kennedy asked if a decision in favor of the Obama administration might lead to Congress someday forcing an employer to pay for a worker’s abortion.
But for the OU, RCA, RAA, NCYI and the Agudah, the matter had nothing at all to do with the contraceptives, the burning issue inflaming approximately 80% of American Jews. It had to do with keeping shops closed on Shabbos and customers not offending haredi eyes.
By Jeanette Friedman and combined services
