Matthew Franck on Hobby Lobby & Religious Freedom Jurisprudence
Date: February 16th, 2014
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Can the federal government require a private employer to provide a service or product to employees that violates the private owner’s freedom of conscience? This is the subject that is up for debate in an upcoming US Supreme Court case pitting Hobby Lobby and Conestoga Wood Specialties against the Health and Human Services contraception mandate that is part of the Patient Protection and Affordable Care Act. Prof. Matthew Franck, director of the William E. and Carld G. Simon Center on Religion and the Constitution at the Witherspoon Institute, provides us with the background to this case, the historical precedents that may influence how it is decided, and his review of what each side will be arguing in late March.
We begin with a review of how this court case percolated up to the Supreme Court, as well as a brief discussion who the primary plaintiffs — Hobby Lobby and Conestoga Wood Specialties — are and what issues are at stake. This discussion covers a bit of the history of the Patient Protection and Affordable Care Act and the HHS mandate that came out in the fall of 2011. The primary issue being contested concerns whether or not a business owner can be required to provide certain types of contraception, most notably abortifascients, that those owners consider to be in direct violation of their religious conscience. Tony asks a variety of questions regarding the nature of the litigants including why they were chosen amongst a number of other potential companies that were also suing, and whether or not the fact that both of these companies are privately held has any impact on their legal standing. Matt fills in all the details and notes how the case might have been different had this been the CEO of a publicly-held and traded corporation bringing suit. He also points out that under consideration is whether or not a corporation — in this case one that is privately held — can have the same rights of conscience that an individual possesses under the US Constitution’s First Amendment.
We next consider the historical case law that may (or may not) inform the thinking of the Supreme Court justices. We take a quick tour of religious liberty cases over the past half century beginning with Sherbert v Verner and ending, most recently, with Hossana-Tabor, a case that Matt has discussed in greater detail on this show before (see link below). It is during this discussion that Prof. Franck brings up a judicial concept that Tony was unaware of — exemption-based jurisprudence. This style of jurisprudence allows for laws to be made and then exemptions appealed for based upon some special characteristic of an individual or group. Matt feels that this is not the best legal structure for a country to have, something that he has written about and will be available in a few weeks (see link below).
Following our historical discussion, Matt then lays out what he believes will be the arguments made on both sides of this case. A coin flip determined that he would start with the plaintiff’s side of things and he then brings up the defendant’s rebuttal to each of those points. Many of these arguments were hinted at throughout our earlier discussion, but the last 15 minutes of the interview provide a nice summary of what will probably be heard in oral arguments in late March of 2014 (assuming the snow in DC will melt by then). At the end of the conversation, Prof. Franck lays out what he thinks will be the implications for religious liberty should the government win the case and should Hobby Lobby and Conestoga win. Recorded: February 14, 2014.
Matthew Franck’s bio at the Witherspoon Institute.
“When Government Does Theology,” by Matthew Franck (at the Canon & Culture blog).
“Escaping the Excemptions Ghetto,” by Matthew Franck (at First Things … available in March 2014).
Against the Imperical Judiciary: The Supreme Court against the Sovereignty of the People, by Matthew Franck.
Matthew Franck on Hosanna-Tabor and Ministerial Exemptions.
David Cortman on Religious Liberty Updates.
Phillip Muñoz on Catholic Bishops, Religious Liberty, and Health Care Mandates.
Jeremy Lott on Episcopalians, Ex-Athiests, Health Care, and German Circumcision.
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