Lawyers Who Defended Religious Freedom Applaud Hobby Lobby Ruling

By Barbara Hollingsworth and Lauretta Brown | June 30, 2014 | 2:42 PM EDT


U,S. Supreme Court

( –  Monday’s U.S. Supreme Court ruling in the Hobby Lobby case was applauded by many lawyers who argued that the Obama administration’s contraceptive mandate was unconstitutional under the Religious Freedom Restoration Act of 1993 (RFRA).

“We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest,” the high court ruled in its 5-to-4 decision.

”Today’s decision is a big win for freedom in America. The court confirmed that Americans don’t give up their religious freedom when they open a family business,” Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty and counsel for Hobby Lobby, told reporters during a press briefing Monday discussing the group’s victory in Burwell v. Hobby Lobby.

“The court stated the obvious: that of course there are lots of different ways for the government to get contraceptives to people without forcing religious objectors to be part of the process.” Rienzi said.

"The court was being very clear that it was giving a narrow decision about these types of closely held companies in a situation where the question was really who’s going to pay for this benefit the government thinks people ought to have.”

However, he added, “the court was careful to make clear that it was issuing a constrained decision, that it was not opening the floodgates to arguments that it’s okay to engage in race discrimination because you have a religious reason or that big, for- profit publicly traded companies like IBM can suddenly get out of all federal law.”

“The court gave a broad reading of its order in the Little Sisters of the Poor case. This is in footnote nine of the opinion, where it made clear that religious organizations that object to signing the form should be allowed to simply notify the government of their objection but not be forced to sign the form,” Rienzi explained.

Other lawyers representing those opposed to the contraception mandate on religious freedom grounds also expressed their approval of the high court’s ruling.

“We are very excited by the Supreme Court’s ground-breaking ruling today,” said Erin Mersino, senior trial counsel for the Thomas More Law Center, which filed an amicus brief in the case. “It’s excellent.” (See Thomas More amicus.pdf)

“This is a huge decision. It’s the first time that the Supreme Court expressly ruled that a corporation can exercise religious freedom,” Mersino told, adding that the center’s primary argument was based on RFRA. “The Supreme Court adopted our view and for the first time articulated this point of law.”

“This is something the Thomas More Law Center has been working on for almost two years. We currently represent 30 plaintiffs, and we’re extremely grateful for the hard work this opinion reflects.”

“Many of our plaintiffs do not supply contraceptives and have not for years before the mandate enacted by [former Dept. of Health and Human Services Secretary] Kathleen Sebelius,” she added. “So as a practical matter, most of our plaintiffs will not add this objectionable coverage” to their employee health care plans.

Jay Sekulow, chief counsel of the American Center for Law and Justice (ACLJ), which also filed an amicus brief in the case on behalf of 21 family business owners, said the case represents a “significant setback to the abortion industry.”

“American citizens do not lose their religious freedom when they form a corporation and try to live out their religious values in the conduct of their business,” Sekulow said.

“Moreover, the court — by holding that closely-held corporations cannot be forced to directly subsidize abortion-pills — dealt a severe blow to the Obama Administration’s ongoing assault on religious liberty and represents a significant setback to the abortion industry.”

But others pointed out that the ruling was only a partial victory for religious rights.

“This was definitely a victory for Hobby Lobby,” agreed Goodwin Procter attorney Kevin Martin, who filed an amicus brief with the court based on RFRA on behalf of the Knights of Columbus, the world’s largest Catholic fraternal service organization, with more than 1.8 million members and 14,000 local and state councils. (See KofC amicus brief.pdf)

But Martin, who called the ruling “a narrow win for religious freedom,” also cautioned that “it sounds like a pretty nuanced opinion.”

“It sounds like the court reached a pretty narrow ruling. The five conservative justices in the majority, and the four liberal justices in the dissent. The narrowest holding from the majority seems to be that closely held private [corporations] are allowed to, are protected under RFRA."

"It sounds like there wasn’t a majority to say that public companies are also protected by RFRA. So it sounds like this won’t be applying to General Electric, but it does apply to companies like Hobby Lobby."

“Justice Kennedy, who was part of the majority, appears in his concurrence, as it's being reported,  to have gone out of his way to say what the ruling would not apply to. So for example, he said that this would not allow an employer to get out of providing coverage for blood transfusions, it would not allow an employer to avoid a mandate for vaccinations."

"Of interest, given the same-sex marriage debate, Justice Kennedy appears  to say that the holding in the case would not allow an employer to engage in discrimination, which is otherwise unlawful."

“So it really sounds to me like a[n] exception was carved out for small, closely held corporations not to provide coverage for very controversial procedures, such as abortifacient drugs or abortion, but it doesn’t go much further than that.”

Martin said that the ruling was likely the best the conservatives on the court could do given its ideological composition.

“It was the narrowest decision that would keep Justice Kennedy, who is the swing justice, in the majority,” Martin told “Getting Justice Kennedy to agree that at least some for-profit companies don’t need to be required to pay for abortifacients or abortions might have been the best the majority could do.”

“It doesn’t give the religiously-minded everything they were looking for, and certainly there will be cases at the margin where people with sincere religious beliefs will have to pay for things, whether it’s under the Affordable Care Act or some other law which comes down the pike, that are inconsistent with their religious beliefs,” Martin added.

“But at least this gives those companies owned by religious individuals a fighting chance to make their case.”