Supreme Court arguments show government’s anti-Hobby Lobby case is an attack on ‘profit’

Patrick Howley Political Reporter
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In the case of Christian-owned private company Hobby Lobby currently before the Supreme Court, the government seeks to eliminate a constitutional protection that can block government mandates on private companies.

Oklahoma-based craft store chain Hobby Lobby’s case that it should not be required to provide its employees insurance coverage for contraception is an argument to preserve religious liberty protections guaranteed by the First Amendment.

But Hobby Lobby, deemed a “for-profit corporation” by its opponent in the case, is effectively fighting for businesses’ First Amendment rights in general. In a case that could redefine government’s regulatory relationship with private enterprise, the “for-profit” part is what the government’s argument hinges on — and what the government is principally concerned with.

The federal government attorney arguing against Hobby Lobby at the Supreme Court made that point Tuesday in no uncertain terms.

“It would be such a vast expansion of what Congress could have thought it was doing to say that for-profit corporations can make claims for religious exemptions to any laws of general application that they want to challenge,” said U.S. Solicitor General Donald Verrilli, who was appointed by President Obama in 2011.

Verrilli was referring to Congress’ passage of the Religious Freedom Restoration Act (RFRA), signed into law by President Clinton in 1993, to embolden religious liberty protections. Though the law was later deemed unconstitutional at the state level, its protections continue to exist with regard to federal government laws like Obamacare’s contraceptive mandate.

And RFRA aside, the Free Exercise Clause of the First Amendment holds that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

“The government wants to distinguish between non-profit and for-profit corporations,” Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which represents Hobby Lobby, told The Daily Caller prior to this week’s proceedings.

The government’s argument, according to Duncan, is that “built into the First Amendment is a distinction between commercial and non-commercial enterprises. Our response to that is there is no such distinction. It would be an odd distinction to make, and unconstitutional to even make it.”

“If you organize as a non-profit then you keep your rights. If you organize as a for-profit then you lose your rights,” Duncan said, interpreting the government’s argument. “The distinction is between profit-making and non-profit making.”

That argument, aside from rendering Solyndra perhaps the most religious company in the world, has dire implications for the cause of religious liberty, which liberal justices on the court seem to find trivial when evaluating government’s power over business.

“Is your claim limited to sensitive materials like contraceptives, or does it include items like blood transfusion, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?” Obama appointee Sonia Sotomayor, one of the most vociferous voices in Tuesday’s hearing, asked Hobby Lobby’s lawyer (apparently suggesting that it’s absurd for Muslim companies to be able to ban pork in their offices?).

But religious liberty is not the only thing at stake.

The argument has dire implications for any constitutional guarantee that could be used by the private sector to check the unbridled expansion of government authority.

If religious liberty does not apply to private companies, then does the same hold true for the right to commercial speech, also protected by the First Amendment? Will the government after some future decision be allowed to prohibit all companies from advertising their goods and services, as it has done to some extent to tobacco companies?

The court already ruled in 1978’s Ohralik v. Ohio State Bar Association that commercial speech is less protected than other types, though a 1980 decision clarified that ruling to establish criteria for commercial speech that largely restored its protections.

And how can a company’s “for-profit” designation exclude it from First Amendment religious liberty protections when the court ruled in 2010’s Citizens United case that for-profit corporations are guaranteed to their First Amendment right to political speech?

Fortunately, the government’s argument in the Hobby Lobby case has already revealed itself to be legally flimsy. Verrilli, under tough questioning from Justice Anthony Kennedy, admitted Tuesday that under his argument private businesses would not be forced to pay for abortions. Religious liberty, he therefore admitted, still exists.

But as we’ve seen in recent Supreme Court rulings — like the 5-4 2012 judgment that an Obamacare individual mandate “penalty” could be re-defined for constitutional purposes as a “tax” — legality often takes a back seat to politics.

If Sen. Mike Lee’s prediction of a 7-2 vote in favor of Hobby Lobby turns out to be wrong, the relationship between government and private enterprise in the United States will profoundly swing in the direction of government.

In this case, the parties representing the government have shown their hand: their argument is for the subjugation of the private sector by the federal government. Religion, to them, is just a silly little thing standing in their way.

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