Special Interview with Former ACLU President, Nadine Strossen

Image via David Shankbone

On Sunday, June 22nd 2014, I was lucky enough to hold an exclusive interview with former President of the American Civil Liberties Union (ACLU) and current New York Law Professor of Constitutional Law, Nadine Strossen, regarding the Hobby Lobby v. Sebelius case, on Let Your Voice Be Heard RadioHere is the excerpted version:

A few months ago the Supreme Court held oral arguments on Hobby Lobby v. Sebelius; and this week or next week, the Supreme Court is going to make a decision on this case. This decision is going to have legal, political, and social implications, because it’s going to set the precedent as to whether companies – for-profit companies –  have the right to deny employees health care if it conflicts with their religious beliefs. Hobby Lobby is a for-profit business. They brought a lawsuit in which they argue that the ACA’s mandate that all insurance companies provide or cover birth control violates their religious rights under both the Religious Freedom Restoration Act (RFRA) and the Constitution. There are two main issues in the case which are: 1. Can a for-profit corporation be a “person” for purposes of the Religious Freedom Restoration Act, which refers to individuals religious freedom, and 2. Whether or not the birth control mandate (assuming that they can be a “person”) violates the Religious Freedom Restoration Act? Or, in other words, does Hobby Lobby have to provide insurance plan that cover birth control for employees?

In light of this upcoming decision, we are speaking exclusively with the former President of the American Civil Liberties Union, Nadine Strossen. We are going to be discussing the constitutionality of the birth-control mandate, the debate over religious liberty, the possible outcomes of the case, and the implications of the case in relation both to insurance payments for birth control and broader implications on ruling that (or potentially ruling that) a corporation is a person for the purposes of religious freedom.

Ilyssa Fuchs (IF): Good morning Nadine.

Nadine Strossen (NS): Good morning Ilyssa and thank you for being such a great con law student and also now a great interviewer.

IF: Thank you. Thank you. It’s great to have you. So, first and foremost, did I get those issues of law correct? Is there anything else you would add?

NS: Everything you said is completely correct. It’s a statutory issue rather than a constitutional law issue – and people are surprised to hear that – because in a 1990 decision the Supreme Court essentially gutted the Free Exercise Clause of the Constitution. So, that’s why Congress passed a statute called the Religious Freedom Restoration Act. And what it does is, as a statutory matter, returns the protections to religious liberty that used to exist under the Constitution. What’s kind of interesting is that it was Justice Scalia who wrote that 1990 decision, really narrowing the scope of the Free Exercise Clause, and he made the argument that might come back to bite him in an odd way in this case, because there he said, [paraphrasing], “Why should somebody who has a religious objection to a generally applicable law get off scot free without honoring the law?” In that case, it happened to be two members of the Native American Church – which as many people know use Peyote as the central sacrament, like the use of wine in the Catholic mass – and the members of the Native American Church lost their jobs because they had made this religious use of Peyote, and they argued that they should have a Free Exercise Clause Exception. Scalia said, [paraphrasing], “Nonsense, it’s a generally applicable law. You can’t just have the government make exceptions for you.” And yet now, this is exactly what Hobby Lobby and the other Christian companies are arguing in this case: that they should have a religious liberty based exemption to a generally applicable requirement in the Affordable Care Act – that all female employees should have free contraception because every public health study has shown that that is the most important preventive health care step you can take for a woman; that preventing unintended pregnancies and the adverse health consequences make the single biggest contribution to women’s health overall. So, ironically I do suspect Scalia is going to uphold the statute [the birth control mandate], but I do want to point out at the beginning the inconsistency that I anticipate.

IF: Interesting point. It’s funny, I had two other questions regarding that, that you kind of already answered, which were: Why was the case brought under the Religious Freedom Restoration Act instead of just a straight 1st Amendment argument? And my next question tied up into that, was about Employment Division v. Smith, which I know you already laid out. But, [in Smith], Scalia says, “The Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” So, the tie up of those two, which would be:  Should Smith effect the outcome of this case even though it was brought under RFRA?

NS: It won’t. I mean basically, Scalia has the view, which came before in that case, that you have no constitutional rights at all if a government law just happens to adversely affect you. The only thing that will raise a constitutional issue, in his view, is if the government sets out deliberately to discriminate against you. So, in his view, Hobby Lobby and other Christian companies that object to certain methods of birth control, could only have a constitutional free exercise of religion claim if the government deliberately passed a law saying, “We’re going to get all those Catholic companies who don’t believe in certain forms of birth control and who believe they are abortion.” Obviously, that was not the intent of the law, the intent of the law was a neutral one, of making sure that all women, regardless of the religious beliefs of their employers, have an equal opportunity for this incredibly important general health measure, not to mention a measure that is consistent with their constitutionally protected reproductive freedom rights. So, interestingly enough, there are constitutional level issues involved in this case in the sense of the application of the statute, because to apply or to enforce RFRA in a way that allows a for-profit corporation whose managers or owners happen to have certain religious beliefs, to impose their religious beliefs on their female employees, is to violate the gender equality rights of the women under the Equal Protection Clause of the Constitution, it’s to violate the reproductive freedom rights of the women, which the Supreme Court has recognized under the Constitution, and it’s also to undermine the health of the women. Ilyssa, you had a really good point at the beginning, that as important as this case is for all those rights and interests that I’ve just laid out, it’s implications go far beyond the facts of this case, because if the Court says you can use RFRA in exactly the way Scalia has said that you can’t use the Free Exercise Clause of the Constitution, that means we’re going to have for-profit corporations raising objections – potential religious objections – to every possible kind of health care that they have religious offense at. We know that certain religions object to every kind of medical intervention, Christian Scientists for example. Many object to blood transfusions, many object to vaccinations, and in the Supreme Court oral arguments those not-so-hypotheticals were brought up by a number of the Justices, and the lawyer who was representing the objecting companies did acknowledge that RFRA claims could be made in those situations as well. And it gets even worse, because we know that there are many religiously based objections to, for example, LGBT rights; dare I say, to racial equality, I took old cases in the 80s where Bob Jones University and Goldsboro Christian schools interpreted the Bible as mandating racial segregation.

IF: What grounds does Hobby Lobby have to make the argument that they are a “person” for the purposes of religious freedom? Does that stem from the precedent in Citizens United?

NS: I think it’s easy to make fun of this notion that a corporation can be a person. I think we really have to look at it in context. We have to look at each different corporation, each different purpose for which they are asserting personhood, and in some cases it’s defensible and makes sense and it some cases it doesn’t. Now, in this case, it’s a matter of statutory interpretation: What did Congress mean when Congress used the word person and said that a person is protected under the Religious Freedom Restoration Act? Congress wasn’t very helpful. It didn’t include a definition of the term person in the statute. But, there is just a general statute called the Dictionary Act, passed by Congress, which says any time the statute itself doesn’t provide a definition you look to the Dictionary Act and the Dictionary Act’s general definition is that person does include organizations of persons including corporations. The debate is over, well what about the context? And the important context is there’s never been a single case in which the Supreme Court has recognized a religious liberty right in which it did so on behalf of a for-profit corporation. It has done so for corporations. Here’s an interesting example: Most churches and religious organizations are persons and I don’t know anybody who disagrees with giving free exercise of religion rights to churches, mosques, synagogues, temples, etc. But, they are not for-profit corporations, and that’s the distinction that is very much in play in this case.

IF: While this has been pending, last week, the U.S. District Court in Alabama decided a case that was very similar. It was about providing contraceptive coverage under the Affordable Care Act. And the District Court for Alabama said that it was not a violation of religious freedoms, as claimed by the Eternal World Television Network (EWTN). They are the largest non-for-profit religious media network in the world. So, how will the decision in Hobby Lobby potentially affect the Eternal World Television Network decision as that winds its way up towards the Supreme Court?

NS: Well, I’ll be a good con law professor Ilyssa, and say, what do you think? You’re more familiar with that case than I am and I commend you.

IF: I mean it’s interesting because it’s a non-for-profit versus a for-profit, so it seems to me that if a for-profit can get an exception, then the logical thread is that the non-for-profit would get an exception also. And since this case is actually working its way up behind Hobby Lobby, this case doesn’t set the precedent for what they are going to decide in Hobby Lobby. It’s just interesting that it’s coming behind. If it would have come ahead it would have maybe had a different outcome on what comes after it.

Continued on Page 2

Ilyssa Fuchs

Ilyssa Fuchs is an attorney, freelance writer, and activist from New York City, who holds both a juris doctor and a political science degree. She is the founder of the popular Facebook page Politically Preposterous and a blog of the same name. Follow Ilyssa on Twitter @IlyssaFuchs, and be sure to check out her archives on Forward Progressives as well!


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