A little more than 20 years ago, Congress did something that, today, is hard to imagine. Lawmakers from both parties and across the political spectrum found common ground and passed, by a near-unanimous vote, the Religious Freedom Restoration Act, which firmly commits the federal government to protecting and promoting our "inalienable right" to freely exercise religion. As President Clinton remarked when he signed the legislation into law, "the power of God is such that even in the legislative process, miracles can happen."
Last week, the Supreme Court agreed to hear two cases that are testing the strength of this commitment. The arguments and decisions in the Hobby Lobby and Conestoga Wood lawsuits will say a lot about the health, and the future, of what Clinton called our "first freedom."
These cases involve religious liberty challenges by two family businesses to the rule in the Affordable Care Act requiring employers to provide insurance coverage for contraception and some drugs that many believe can cause abortions.
The Green family has not confined its Christian beliefs to Sunday worship, and has instead expressed them through the operation of its Hobby Lobby stores for nearly 40 years. Similarly, the Hahn family's Mennonite faith has animated and sustained its woodworking business for generations.
Like millions of religious believers and groups, these challengers reject the idea that religious faith and religious freedom are simply about what we believe and how we pray, and not also about how we live, act and work. At the heart of these two cases is the straightforward argument that federal law does not require us to "check our faith at the door" when we pursue vocations in business and commerce.
There should be no question about the sincerity of the religious beliefs at issue. These are not cases where the profit-focused managers of publicly traded mega-companies are cynically trying to save a few bucks or to gain a competitive edge.
As many would-be Sunday shoppers know, the Green family "walks the walk." Signs on Hobby Lobby stores' doors say that they close on Sundays "to allow employees time for worship and to spend time with their families." Their stores do not carry shot glasses, lewd greeting cards or vulgar posters, and the background music is Christian. Hobby Lobby contributes generously to charities and starts full-time employees at nearly double the minimum wage. When the Greens and Hobby Lobby do this, and many other things, they are living out their faith and exercising their religion.
Hobby Lobby also provides excellent health insurance, which includes coverage for most — but not all — contraceptives. However, because of the Greens' firm belief in the dignity of human life and about when and how it begins, Hobby Lobby cannot provide coverage for some of the required drugs because they could cause an abortion.
The government and others argue that the Greens' religious beliefs are irrelevant because they've freely chosen to enter the rough-and-tumble world of commerce and that, in any event, the exercise of religion is for individuals, not corporations. But Hobby Lobby's lawyers at the Becket Fund for Religious Liberty will be on solid ground when they explain to the court that both of these arguments are misguided.
The issue is not whether groups, associations and corporations have religious freedom rights under federal law. Of course they do. After all, religious hospitals, schools, social service agencies and churches are not "individuals," but it would be bizarre to say that they don't exercise religion.
And the question should not be whether legal protections for religious liberty stop at the sanctuary door or evaporate when a person is trying to make a living or a business is aiming to make a profit. At a time when we talk a lot about corporate responsibility and worry about the feeble influence of ethics and values on Wall Street decision-making, it would be strange if the law were to welcome sermonizing from Starbucks on the government shutdown but tell the Greens and Hobby Lobby to focus strictly on the bottom line.
The Religious Freedom Restoration Act reaffirmed an idea that is deeply rooted in America's history and traditions — namely, that politics and policy should respect and, whenever possible, make room for religious commitments and conscientious objections. True, religious liberty is not absolute, and, in a pluralistic society like ours, not all requests for exemptions and accommodations can, or should, be granted. Some religious liberty lawsuits will, and should, fail, but not simply because they involve what happens at work on Monday and not what happens in services on the Sabbath.
What Clinton said when he signed the act into law is worth remembering today: "Let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions." He challenged us instead to "bring our values back to the table of American discourse to heal our troubled land." The Greens and Hobby Lobby, by refusing to check their faith at the marketplace door, are doing just that.
Richard W. Garnett is a professor of law at the University of Notre Dame.Copyright © 2015, The Baltimore Sun