Lecture 25Outline of Last Lecture I. Let’s Begin with a QuestionII. YES!III. NO!IV. Huh?V. Religious TolerationVI. Emergence of Religious Toleration in EuropeVII. Peace of WestphaliaVIII. Maryland Toleration ActIX. Religious LibertyX. The First FreedomXI. Historical Background: Roger WilliamsXII. Williams and Religious LibertyXIII. Thomas JeffersonXIV. Ambiguous: Does “Liberty” Create a “Secular” StateXV. QuestionXVI. Religious NeutralityXVII. Everson v. Board of Education of Ewing Township (1947)XVIII. Everson decisionPHIL 1101st EditionXIX. Everson and the “Wall of Separation”XX. Cheerleaders and the Wall of SeparationXXI. Another QuestionXXII. “Neutral” LawsXXIII. Neutral Laws cannot Hinder Religious CommunitiesXXIV. Santeria and SacrificeXXV. Islamic Cnter of Murfreesboro, TNXXVI. Fight Goes OnXXVII. Liberty and Neutrality: Two Possible ViewsOutline of Current Lecture XXVIII. Burwell v. Hobby Lobby: FactsXXIX. The Contraception MandateXXX. Exemptions to the ContraceptionXXXI. The Plaintiff’s ComplaintXXXII. The Government’s DefenseXXXIII. The Court’s DecisionXXXIV. The Court’s Decision: The CriterionXXXV. The Court’s DecisionXXXVI. In the Wake of Hobby LobbyXXXVII. One More Free Exercise Case: Holt v. HobbsXXXVIII. How We Got ThereXXXIX. See the FutureXL.Summary: Recent Free Exercise CasesXLI. Free-Exercise and “Conscience”Current Lecture XLII. Burwell v. Hobby Lobby: Factsa. Case involves three companies that object to the mandate to provide insurancecoverage to employees that includes specific forms of contraceptionb. Named for Hobby Lobby:i. for- profit corporation that operates a chain of retail stores. Corpora-tion owned entirely by a single family (Greens). No shares sold on a stock marketii. Hobby Lobby includes 500 stores nationwide, and employs more than 13,000 individualsXLIII. The Contraception Mandateb. Patient Protection and Affordable Care Act (ACA) employers (with 50 or more employees) to offer group health insurance that includes “preventive care and screenings” for women without “any cost sharing requirements”i. HHS regulations detail that: “coverage without cost sharing” extends to “all food and drug administration (FDA) approved contraceptive methods, sterilization procedures, and patient education and counsel-ing.”XLIV. Exemptions to the Contraceptionb. excemptions from this requirement provided to:i. religious employers (churches)ii. religious non-profit organizations (Social Service organizations estab-lished by the Catholic Church)c. In such cases, the organization certifies its objection to the services and the in-surer carrier is required directly to provide the coverage to the employee with-out costi. carriers willing to do this because contraception is cheaper to provide the pregnancy careXLV. The Plaintiff’s Complaintb. Failure to provide an accomodation to the for-profit corporations violates theirfree-exercise rightsc. Insoluble burden of conscience. Company must either:i. directly facilitate services that violate their own consciences (thus in-volving them in immoral actions)ii. or they have to eliminate health care coverage all together (and thus also become liable to significant fines)XLVI. The Government’s Defenseb. Who exercises religious feredom?i. corporations are not “persons” for purposes of exercising relgious free-domii. different from non-profits in which the mission is a direct extension of the organizationc. How does the requirement impose a “burden?”i. connection between the company’s actions and the feared effects (elimination of an embryo) is only indirect and distantii. the use of the services is a choice of the employee, not of the em-ployer. the conscience at issue is that of the employeeXLVII. The Court’s Decisionb. Finds for the plaintiffc. In cases of “closely held corporations, the company’s identity is closely linkedto that of the owner. For-profit status irrelevanti. the corporate “person” can exercise the relevant religious rightsd. Plaintiff’s view of moral situation controls the decisioni. The court “must not presume to determine... the plausibility of a reli-gious claim”XLVIII. The Court’s Decision: The Criterionb. case decided in keeping with both first amendment and a later law, Religious Freedom Restoration Act (RFRA) (1993)c. RFRA obligated governmental organizations to implement “least restrictive means” to pursue “compelling interest” of the statei. Requites a “means-end” analysis1. Question: Even accepting the government’s argument that con-traception is a necessary component of preventive health care. is the HHS policy the least restrictive means?XLIX. The Court’s Decisionb. Priority of Religious Freedom over other social endsc. Not a “balance” of two legitmate goalsi. religious freedom takes precedence. government must find appropraitemeans to accomodate.d. NOT ANSWERED: does it matter if a person’s religious conscience is in “er-ror?”L. In the Wake of Hobby Lobbyb. many more cases on accomodation from contraception mandate pendingc. other aspects of corporate law implicated:i. non-discrimination lawsii. collective bargaining lawsLI. One More Free Exercise Case: Holt v. Hobbsb. decision pending June 2015c. FACTS: Arkansas Inmate believe his Muslim faith requires him to grow a beard. Citing security concerns, prison authorities have declined this request, including a compromise request by the prisoner for one-half-inch beardd. holt sued on the grounds that this policy deprived him of relgious freedomLII. How We Got Thereb. Lower court decisioni. we conclude that defendants met their burden.. of establishing that ADC’s grooming policy was the least restrictive means of fur-thering a compelling penological interest... notwithstanding Mr. Holt’s citation to cases indicating that prisons in other jurisdictionshave been able to meet their security needs while allowing inmates to maintain facial hair.. it does not outweigh deference owed to ex-pert judgement of prison officials who are more familiar with their own institutionsc. Note:i. definition of criterion: “least restrictive means.” = effect of RFRA and related lawsii. position of deference: here court provides wide latitude to state au-throities1. this issue came up in preliminary S. Ct. hearing. It wil be im-portant in ultimate decision.LIII. See the Futureb. we can’t show how S. Ct. will rule.. but we can make