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UVa Prof. Douglas Laycock finds Supreme Court decision in Hobby Lobby a win/win

Created in 1789: "Article III, §1, of the Constitution provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
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In an interesting coincidence, Douglas Laycock's book “Religious Liberty, Volume 2: The Free Exercise Clause,” was released on the same day that his wife, Teresa Sullivan, was inaugurated as President of the University of Virginia, only the 8th President since the University's founding by Thomas Jefferson, and the first woman to hold that office in its 200-year tradition.

A fellow of the American Academy of Arts & Sciences, and a leading scholar on religious liberty, Laycock is currently the Robert E. Scott Distinguished Professor of Law, Horace W. Goldsmith Research Professor of Law; and Professor of Religious Studies, also, at the University of Virginia. Thomas Jefferson was still serving as Minister Plenipotentiary in Paris, in March of 1789, when the Congress of the United States adopted the Bill of Rights as Amendments to the U. S. Constitution

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In a July 1 article appearing in the Washington Examiner online, which also featured a telephone interview, expert in the law of religious liberty, Douglas Laycock, seemed to characterize the coverage of the Opinion in the recent 'Hobby Lobby' case as having generally missed the point:

"You’ll never learn this from the partisan rhetoric on both sides, but the court found a win-win solution. Both sides were protected. Women will get the contraception for free, and Hobby Lobby doesn’t have to pay for it. That’s the most important thing in this decision and you've got to read down into the 15th paragraph in most stories to find it, if you find it at all.

"I think the losers are embellishing the most, but the court didn’t say that employers have this right if the consequence is that employees have to do without the benefit. That’s a much harder question. They didn’t decide that yesterday,

This should not have been 5-4. Once they figured out the employees didn’t have to do without contraception it should have been an easy case; but I think both sides are dug into ideological commitments and sometimes they can overcome that; but very often they can't and they claim to have done all this independent analysis and it just turns out the law agrees with them I don't think there are going to be many of these religious claims by corporations. It has almost never happened before. Not may business corporations are run on religious commitments so it's not surprising that we never saw a case like this before this year. I don't think there are going to be many more."

The issues in the case fell under the protections of both the First Amendment of the Constitution and the Religious Freedom Restoration Act of 1993, and concerned a provision in the Patient Protection and Affordable Care Act of 2010, that required employers to pay for certain products that the plaintiff parties in this case, Hobby Lobby et al., were profoundly opposed to as being in violation of their religious beliefs – specifically forbidden by the biblical commandment: "Thou shalt not kill" – and in their ruling, the Supreme Court agreed with the Government that women had the right to control their bodies through contraception, and in the very rare cases where employers in closely-held business corporations had profound objections based specifically upon long-held religious grounds, the U.S. Department of Health and Human Services would absorb the relatively low cost to provide those medical products at no charge to the women and at no charge to those particular employers.

There was no judgment at all in the Hobby Lobby case relating to whether those religious beliefs were reasonable; and as Professor Laycock observed, those who disagreed with the Opinion generally had found the case to be more complicated, as did Justice Ginsberg in her 35-page Dissenting opinion – to which Justice Sotomayor joined; and Justice Breyer and Justice Kagan joined, also, in part.

At issue was whether Hobby Lobby et al. would be required to pay for the abortive agent, in particular. The following passage is from the Opinion of the Court in Burwell v. Hobby Lobby Stores, Inc. pages 36-39:

" ... This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. ..."

Professor Laycock divides his academic responsibilities at the University of Virginia in both law and religious studies, from which -- within sighting distance --Thomas Jefferson lies buried beneath an obelisk upon which bears the testimonials that he had lived, and by which he most wished to be remembered, through his three singular efforts for the benefit of mankind.

Here was buried

Thomas Jefferson

Author of the Declaration of American Independence,

of the Statute of Virginia for religious freedom,

Father of the University of Virginia

In Query XVII of Notes on the State of Virginia, Jefferson presages the significance of his intention to draw greater attention to the concept of separate purposes for the church and for the state that led to the Statute of Virginia for Religious Freedom:

"The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg. ... Reason and free enquiry are the only effectual agents against error."

Douglas Laycock has argued a number of cases before the Supreme Court and has testified frequently before Congress. He is the author of “Modern American Remedies;” “Religious Liberty,” and has co-edited acollection of essays, entitled “Same-Sex Marriage and Religious Liberty: Emerging Conflicts.”

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