WASHINGTON (JTA) — For 20 or so minutes last week, the issue of religious freedom was cast as a struggle between working women and Muslim and Jewish butchers.
The pointed questions posed March 25 to the Obama administration’s chief lawyer by three Supreme Court justices got to the heart of whether businesses have the same constitutional religious protections as individuals.
National Jewish groups, united 20 years ago in passing the law that consolidated the religious freedom protections, are on opposite sides in the current battle at the Supreme Court, which is considering two federal court decisions concerning President Obama’s signature legislation, the 2010 Affordable Care Act.
Seven Orthodox groups, in an amicus brief, say rights established under the Religious Freedom Restoration Act of 1993 should extend to companies that do not wish to extend certain kinds of contraceptive coverage to their employees; nine Jewish advocacy groups in two separate briefs say that the rights of women seeking such coverage should be preeminent.
Under the ACA, commonly referred to as Obamacare, companies must make available to their employees in their health insurance policies the full range of mandated coverage, including contraceptive services. There is an exemption for religious institutions and a work-around for their affiliated nonprofits.
Two for-profit companies, Hobby Lobby, a crafts chain, and Conestoga Wood Specialties, a cabinet-maker, both privately owned by devout Christians, objected to the contraceptive mandate. Hobby Lobby won, Conestoga lost and the Supreme Court is now settling the case.
While the case is about contraceptives, the issue kosher slaughter ended up being a big part of the back-and-forth during oral arguments.
Citing recent Danish legislation, Justice Samuel Alito, an appointee of President George W. Bush, asked Solicitor General Donald Verrilli what rights would be available, given the administration’s arguments on behalf of the contraceptive mandate, to kosher and halal butchers should Congress ban their ritual slaughter methods as cruel.
“What would a corporation that is a kosher or halal slaughterhouse do?” Alito asked. “They would simply they would have no recourse whatsoever. They couldn’t even get a day in court.”
Verrilli said that such a law would be unconstitutional because it targeted specific faiths, which is when Justice Anthony Kennedy, an appointee of the first President Bush interjected, expanding the hypothetical to suggest that the law would be framed not as targeting a religion but as advancing animal rights.
“They say no animal may be slaughtered unless it’s stunned first, unless the animal is rendered unconscious before it is slaughtered,” Kennedy said, describing his hypothetical law as having “no animus to religion at all.”
Verrilli replied that customers could then bring suit as third parties harmed by the law.
Justice Stephen Breyer, a Jewish Clinton appointee, was not satisfied with the answer.
“The point that Justice Alito was making is that take five Jewish or Muslim butchers and what you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the Freedom of Exercise Clause that you’d otherwise have,” Breyer …read more