Democrats to introduce a legislative fix to Hobby Lobby decision

ProtestorsThe U.S. Supreme Court’s decision in Hobby Lobby was not grounded on the First Amendment, as the opinions made clear. It was grounded on a statutory law, the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq. which overturned the standard of review in Employment Division v. Smith, 494 U.S. 872 (1990), which held that the Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use. The opinion was written by Justice Antonin Scalia.

As Justice Ginsburg explained in Hobby Lobby:

Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA[.]  . . . In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 424 (2006).

The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178 (1993) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103–88, pp. 6–7 (1993) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] . . . new rights for any religious practice or for any potential litigant.” 139 Cong. Rec. 26178 (statement of Sen. Kennedy).

In the same way that Congress legislatively overturned the standard of review in the Smith decision with RFRA, Congress may also legislatively overturn the Hobby Lobby decision.

Democrats in the U.S. Senate are preparing to fast-track a bill. Democrats Push Bill to Reverse Supreme Court Ruling on Contraceptives:

Democrats in Congress said Tuesday that they had developed legislation to override the Supreme Court decision on contraceptives. The bill would ensure that women had access to insurance coverage for birth control even if they worked for businesses that had religious objections.

The bill, put together in consultation with the Obama administration, would require for-profit corporations like Hobby Lobby Stores to provide and pay for contraceptive coverage, along with other preventive health services, under the Affordable Care Act.

The measure could be on the Senate floor as early as next week, Senate Democrats said. House Democrats are developing a companion bill, but it faces long odds in the House, which is controlled by Republicans.

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Senator Patty Murray, Democrat of Washington, who led efforts by Senate Democrats to respond to the ruling, said: “Your health care decisions are not your boss’s business. Since the Supreme Court decided it will not protect women’s access to health care, I will.”

Ms. Murray wrote her proposal with Senator Mark Udall, Democrat of Colorado.

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Senate Majority Leader Harry Reid said Tuesday, “This Hobby Lobby decision is outrageous, and we’re going to do something about it. People are going to have to walk down here and vote, and if they vote with the five men on the Supreme Court, I think they’re going to be treated unfavorably come November with the elections.”

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Sen. Murray’s bill criticizes the court’s majority opinion and . . . says that an employer “shall not deny coverage of a specific health care item or service” where coverage is required under any provision of federal law. This requirement, it says, shall apply to employers notwithstanding the Religious Freedom Restoration Act.

The bill does not amend that law. It explicitly preserves federal rules that provide an exemption for churches and other houses of worship that have religious objections to providing coverage for some or all contraceptives.

The bill also preserves an accommodation devised by President Obama for nonprofit religious organizations, like colleges, hospitals and charities, that have religious objections.

Representative Diana DeGette, Democrat of Colorado and a co-author of the House version, said: “Our main concern is making sure that women are not denied contraceptives while we sit around trying to figure out what to do. The bill is an interim solution, to make sure women can get birth control while we look at broader issues, including the Religious Freedom Restoration Act.”

Think Progress adds, Senate Hopes To Override Hobby Lobby: ‘Your Health Care Decisions Are Not Your Boss’s Business’:

Murray and Udall’s legislation will not amend or repeal RFRA, but rather make it clear that RFRA itself does not override for-profit companies’ obligation to comply with the Affordable Care Act. However, it’s possible that other lawmakers may eventually attempt to introduce a separate bill to make more changes to the religious liberty law itself. The Center for American Progress has released proposed amendment language to accomplish that, suggesting adding a section that stipulates the RFRA “does not authorize exemptions that discriminate against, impose costs on, or otherwise harm others, including those who may belong to other religions and/or adhere to other beliefs.”

The Obama administration has indicated that it supports legislative fixes to the recent Hobby Lobby decision. It’s also possible that the White House will find a governmental workaround that maintains women’s access to coverage by having insurers and third-party administrators foot the bill for contraception.

The proposed birth control legislation is being fast-tracked, so it won’t need to go through committee and could come to the Senate floor as early as next week. Although the measure has little chance of passing the GOP-controlled House, its supporters are hoping to force lawmakers to go on the record about whether they support preserving workers’ access to the full range of birth control options.

As if you needed any more motivation to elect Democrats to Congress and the Senate this fall, here is yet another reason: reversing an out-of-control conservative activist U.S. Supreme Court that obstuctionist Tea-Publicans in Congress are enabling.

For right-wing trolls like Doug MacEachern and Robert Robb at The Arizona Republic who try to argue that Hobby Lobby is not as radical as Justice Ginsburg warns, religious groups are already demanding to be excluded from an executive order that would bar discrimination against gay people by companies that do government work. Faith Groups Seek to Opt Out of Rule to Bar Anti-Gay Bias.

UPDATE: “After the National Gay and Lesbian Task Force dropped its support for the Employment Non-Discrimination Act over concerns the Hobby Lobby decision opened a door to abuse of the bill’s religious exemption on Tuesday, additional equality groups followed suit. [The ACLU] announced on Tuesday that it would pull its support as it is currently written, along with the Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center.” LGBT Groups Pull Support For ENDA In Wake Of Hobby Lobby Ruling.

h/t Graphic: Sabrina Eaton, The Plain Dealer.

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