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Missouri Family E-News

July 9, 2013

Hobby Lobby Scores Win on Abortion Drug Mandate  



The Hobby Lobby craft store chain has won a major legal victory in its battle to avoid compliance with the federal contraceptive and abortion drug mandate.


The Tenth U.S. Circuit Court of Appeals has ordered a U.S. District Court to re-examine Hobby Lobby's petition for a temporary injunction blocking enforcement of the mandate against the firm.


The full panel of the Tenth Circuit ruled that Hobby Lobby had "established a likelihood of success that their rights...are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm."


The Court concluded that Hobby Lobby had legitimate claims under the Religious Freedom Restoration Act.  The judges ruled that the right to free exercise of religion includes corporations.   


"The protections of the Religion Clauses extend beyond the walls of a church, synagogue, or mosque to religiously motivated conduct, as well as religious belief," the judges wrote.  "Religious conduct includes religious expression, which can be communicated by individuals and for-profit corporations alike."


"We are encouraged by this decision," said David Green, founder of Hobby Lobby Stores.  "We believe that business owners should not have to choose between following their faith and following the law." 


"My family and I believe very strongly in our conviction that life begins at conception," Green explains.  "The emergency contraceptives that we would be forced to provide under this mandate are contrary to that conviction."


Hobby Lobby faced fines of $1.3 million per day for failing to comply with the contraceptive and abortion drug mandate.  That mandate, issued by Health and Human Services Secretary Kathleen Sebelius, took effect on January 1st.   


The mandate requires all health insurance plans issued in the United States to provide "free" coverage of all contraceptives approved by the Food and Drug Administration.  The FDA definition of "contraceptives" includes abortifacient drugs and devices.  


The Department of HHS just announced "revisions" to the rules governing how the mandate applies to religious organizations.  While organized churches and their "integrated auxiliaries" are exempt from the mandate, other religious institutions are not.


Under the latest rules, groups who are operated as non-profit entities, hold themselves out as religious organizations, and oppose contraceptive coverage based on religious objections, will not have to "pay" for such coverage in their health insurance plans.


However, such groups will still be required to cooperate with their insurers or third-party administrators to ensure that the "free" coverage of contraceptives is provided to their employees.


Obama Administration officials have painted the latest religious exemption rules as a compromise.  Catholic and Southern Baptist religious leaders have derided the "accomodation" as a sham.  


DOMA Wounded,
But Still Alive After SCOTUS Ruling


You wouldn't know it from the nightly news shows or secular news sources, but the The Defense of Marriage Act (DOMA) is still standing.  Contrary to the impression left by mainstream media reports, the central provision of DOMA is still the law of the land.  States like Missouri still have the protection of DOMA to ensure state sovereignty in the preservation of their longstanding traditional marriage laws.

Section 2 of the Defense of Marriage Act, which was adopted by Congress in 1996, stipulates that states are not obligated to grant legal recognition to same-sex unions which have been legally sanctioned in another state.  Section 2 says that "no state...shall be required to give effect to any public act, record, or judicial proceeding of any other state...respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state..."

While the U.S. Supreme Court recently struck down another provision of DOMA, Section 2 of the Defense of Marriage Act was never even legally challenged.  And Section 2 is the backbone of DOMA.  With it, states retain the authority to define the institution of marriage as their citizens and elected officials decide.  Without it, state marriage laws become irrelevant.

Without Section 2 of DOMA, Missouri residents could go out of state and enter into a same-sex union, and then return to the state and demand that it be legally recognized.  Such individuals would assert their rights under the "full faith and credit clause" of the U.S. Constitution.  That clause, contained in Article IV of the Constitution, states that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

Section 2 of DOMA currently restricts the scope of  the "full faith and credit clause" when it comes to marriage.  Without it, the marriage laws of Missouri and every other state would be of little consequence.  Marriage in Missouri would be defined by the actions of every other state.

Because of Section 2 of DOMA, Missouri laws governing marriage remain in full force and effect.  Missouri's Constitution (Article I, Section 33) says "that to be valid and recognized in this state, a marriage shall exist only between a man and a woman."  Missouri state law (section 451.022) says that "a marriage between persons of the same sex will not be recognized for any purpose in this state even when valid where contracted."

What the Supreme Court did strike down was Section 3 of the Defense of Marriage Act.  This provision defined marriage for the purposes of federal law as "a legal union between one man and one woman as husband and wife."  Congress directed that this definition would apply to any act of Congress, or any ruling or regulation of federal agencies or departments.

In a 5-4 decision, the High Court ruled that the federal government must recognize the definition of marriage established by each respective state when it comes to the application of federal law.  The Justices asserted that "regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the states."

The Supreme Court concluded that Section 3 of DOMA "forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect."

The High Court went further to declare that Section 3 of DOMA is an unconstitutional "deprivation of the equal liberty of persons that is protected by the Fifth Amendment."  That amendment reads in part that "no person deprived of life, liberty, or property without due process of law."

Much of the opinion, authored by Justice Anthony Kennedy, reads like highly rhetorical social commentary, as opposed to studied constitutional adjudication.  Justice Kennedy (joined by Justices Ginsburg, Breyer, Sotamayor, and Kagan) argues that the purpose of the law was to impose "disapproval," "disadvantage," and "stigma" on same-sex couples.  This is twisted logic, since the purpose of the law was to preserve the historic definition and meaning of marriage and the family.

In language similar to his infamous opinion in Romer v. Evans, Justice Kennedy asserts that the desire of Congress was to "harm a politically unpopular group" and impose "disabilities" on them.  This is a comical claim, considering that the Defense of Marriage Act was adopted with widespread support of both Republicans and Democrats (85-14 in the Senate, 342-67 in the House) and signed by President Bill Clinton.

In a vigorous dissent, Justice Antonin Scalia said that the law merely "[codified] an aspect of marriage that had been unquestioned in our society for most of its existence...and been unquestioned in virtually all societies for virtually all of human history...It is one thing for a society to elect change.  It is another for a court of law to impose change by adjudging those who oppose it [as]...enemies of the human race."

"To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions," Scalia added. 

Legal scholars point out that the High Court's legal reasoning leaves no barrier to federal acceptance of yet further redefinitions of marriage and the family.  "What if states were to recognize polygamists' marriages?" asks Paul Linton, special counsel for the Thomas More Society.  "Under the rationale of this ruling, those marriages would have to be given federal benefits.

In eager response to the ruling, the Obama Administration has announced they are going to expand the Supreme Court's ruling to extend health care and retirement benefits to same-sex "spouses" of federal employees regardless of  their state of residency.  It is expected that over 1100 federal laws and regulations may be impacted by the High Court DOMA decision.

The homosexual rights movement is now plowing full steam ahead to repeal the Defense of Marriage Act altogether.  Congressman Gerrold Nadler of New York and Senator Dianne Feinstein of New York have introduced companion bills to erase Section 2 of DOMA.  The bills are deceptively named the "Respect for Marriage Act."  At last count, the House bill had 161 sponsors, and the Senate bill had 41. 

We urge you to contact your Congressman in Washington, D.C., and strongly urge them to oppose any effort to repeal the Defense of Marriage Act.  You can do so by using this link:
Your U.S. Representative

Tony Perkins, President of the Family Research Council, had this postscript on the Supreme Court DOMA ruling: "The Court can declare same-sex 'marriage' a legal right in the eyes of government, but judges cannot make it morally right in the hearts of the people.  This is an institution that carries God's own signature.  Even absent any faith, the natural order proves the only successful model for civilization is natural marriage...The reality is that society needs children and children need a mom and a dad."

Forty years ago, the Supreme Court tried to make abortion morally right in the hearts of the people through the Roe v. Wade decision.  Thankfully, they failed in abysmal fashion.  They will fail in similar fashion on this foundational issue of marriage so long as Americans pay more heed to the Supreme Ruler than they do the Supreme Court.  Time will tell where this nation's true affections reside.

Joe's Signature