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July 6, 2014

Flashpoint: The Supreme Court decision and ‘closely held’ corporations

The much awaited Supreme Court decision in Burwell vs. Hobby Lobby came down this week. The court ruled in a 5-4 decision that the 1993 Religious Freedom and Restoration Act (RFRA) does cover “closely held” corporations, even if those corporations are for profit.  

At the center of the controversy was Hobby Lobby’s contention that the for-profit, closely held corporation, owned by the Green family, should not, based on exercise of religious freedom, be required to offer several types of abortifacient drugs and services, which are the moral equivalent to supporting abortion, and would thus be religiously offensive to the Greens.  

The federal government had to demonstrate that RFRA was not a substantial burden; and that there was indeed a “compelling government interest,” that women who desired to purchase these abortifacient drugs and services would no longer be able to so. The government lost on both grounds.

Many on the Left screamed foul, led in large part by Justice Ginzburg’s stinging dissent. She overreacted, claiming that a “wave of companies” will demand to opt out of “blood transfusion coverage, the minimum wage and anti-discrimination laws.”

Nancy Pelosi, the always calm voice of the liberal Left, declared the ruling “an outrageous step against the rights of America’s women.” The New York Times editorial board called it a “deeply dismaying decision” that would “deny many thousands of women contraceptive coverage vital to their well-being and reproductive freedom.”

But the Left was simply wrong — again.

First, the decision was narrowly tailored to address closely held corporations, or corporations that are owned and operated by a small number of individuals such as the Green Family in the case of Hobby Lobby. (Interestingly, according to the Internal Revenue Service, 90 percent  of all corporations in the U.S. are defined as closely held corporations.)

Second, RFRA’s two main legal elements were not met: The government may not “substantially burden a person’s free exercise of religion;” and two, the burden had to further that “compelling government interest.”

Should a person or closely held corporation place their religious beliefs on the back burner? No. The Court recently ruled in Citizens United that corporations had the First Amendment right to free speech, i.e., spending money on campaigns. So why shouldn’t the corporation also be able to exercise its First Amendment religious freedom right?

The Left also claims that it is not a burden on the Hobby Lobby or the Green family. The New York Times, again, claims that it is a “perfectly reasonable” requirement that all employer health plans provide birth control methods approved by the Federal Drug Administration.

How might one ask is this a “perfectly reasonable” requirement, particularly when the requirement means an employer must provide a drug or service that is the equivalent of killing or leading to the death of an unborn fetus?

Perhaps this is reasonable to individuals, organizations, groups and even governments that do not place a high value or worth on human life. For those of us who do, however, such as the Green family and Hobby Lobby, the burden is extremely high. The government is operating out of its legal and moral authority.  

This decision is one more blow to Barack Obama and his progressive policies — including the Affordable Health Care Act, a labyrinth of binding rules and regulations that inhibit the freedom of individuals and companies to secure the best and most-affordable health-care insurance possible.

Allowing the free market to operate properly and humanely, as it does in so many other policy areas, will produce the best results. Those willy happily include not restricting a person or corporation’s right to exercise First Amendment freedoms.

Stephen M. King, Ph.D., an adjunct scholar of the Indiana Policy Review Foundation, holds the R. Philip Loy Endowed Chair of Political Science at Taylor University.


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