Category: Constitutional

Supreme Court Rules In Favor Of Religious Freedom

By Sam Ventola,


Today, the U.S. Supreme Court found in favor of the companies’ religious freedom in  Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius.  In each case, the companies argued that the requirement to provide abortion services in the Affordable Care Act (“Obamacare”) violated their rights of religious freedom.  Although religious freedom had been curtailed in previous Supreme Court decisions, religious freedom rights are generally protected at least as against Federal regulation by the Religious Freedom Restoration Act.  Although they could have done so, nothing in the statutes enacting Obamacare indicated that the regulations prevailed over the religious freedom rights protected by RFRA.

The government had argued that although RFRA protected the religious freedom rights of individuals and non-profit corporations, it did not protect religious freedom rights of corporations that sought profits.

As predicted in our recent blog entry on the case, the Court found that it was not legitimate to attempt to deny right under RFRA to Conestoga and Hobby Lobby merely because they were for-profit corporations.  Noting that the government admitted that non-profit corporations are “persons” protected by RFRA, the Court found that there was no basis to then conclude that for-profit corporations are not “persons:”

“This concession [that non-profit corporations are “persons” under RFRA and the Dictionary Act] effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons.  But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”

The Court’s decision is a victory not only for religious freedom rights, but also for legitimate interpretation of statutory authority.  The government’s attempt to allow RFRA’s protections to apply to some corporations but not others was without any support in the actual statutory language.


Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Obamacare, Religious Freedom and “Persons” – You Can’t Bend it That Way

By Sam Ventola,

Alice_Humpty_Dumpty‘I don’t know what you mean by “glory”,’ Alice said.
Humpty Dumpty smiled contemptuously. ‘Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘
‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.
‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’
Alice was too much puzzled to say anything…
Lewis Carroll, “Through the Looking Glass”

In our last article on Obamacare (“Affordable Care Act”) and religious freedom, we pointed out that in the cases currently before the Supreme Court, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, the issue is not one of interpretation of the First Amendment, but instead interpretation of a statute – the 1993 Religious Freedom Restoration Act (“RFRA”).

The most common question we have received on that article is whether a corporation, such as Hobby Lobby, is entitled to protection of its religious freedom under RFRA. It is the argument of the Obama administration that it is not. The statute protects the religious freedom rights of any “person,” and the administration contends that this does not include Hobby Lobby.

The statute itself does not define “person.” However, another statue, the “Dictionary Act,” states that when the word “person” is used in any statute, that word includes corporations “unless the context indicates otherwise….” The Obama administration’s argument is that corporations aren’t usually thought of as having religious freedom rights, so that when RFRA uses the word “person” that doesn’t include corporations.

One of the problems with the argument, however, is that the Obama administration is not willing to stand behind it all the way. They want religious freedom protections to apply to churches and other non-profit corporations. So, they argue that the context of RFRA indicates that “persons” includes corporations… but only sometimes. When the corporation is “non-profit.”

Of course, there is nothing within the language of RFRA, or the Dictionary Act, which would justify including some corporations within “persons” and not others. Both for-profit and non-profit corporations operate at the direction of the individuals that have control over them. Although there may be differences between them – usually established by the law of whatever State the corporation is registered under – nothing within the context of RFRA is changed by whether the party is a “for profit” corporation, “non-profit” corporation, “not-for-profit” corporation, limited liability company, partnership, limited partnership, etc., etc.

The attempt to protect only some corporations but not others represents the same kind of semantic gamesmanship employed by Humpty Dumpty in the quote above. The administration simply wants to call some corporations “persons,” but not others, based on its own desires rather than any context created by the statute. As pointed out in our last article, if Congress had intended RFRA protections against Obamacare requirements not to apply to corporations, or only to apply to specified types of corporations, it could have so specified when Obamacare was passed. Such a distinction should be made by legislation rather than by redefining words after the fact.

On the Current Contraception Debate

By Sam Ventola,

health careThe current debate on contraception reveals some confusion between people as to the meaning of “rights” and “freedom.”  The following is meant to try to clarify the debate.
At issue is the current health care law which requires all employers to provide insurance, and all insurers to cover contraception.  For some people this is a good idea because it protects the “right” to obtain contraception and the “freedom” to use contraception.

However, this is not the traditional meaning of the terms “right” and “freedom.”  The “rights” enumerated in our Constitution are not rights to have something provided to you – they are guarantees of protection from government, ensuring that government regulation will not prevent you engaging in that activity.  In the 1965 case of Griswold v. Connecticut, the U.S. Supreme Court recognized a right of this type (sometimes called a “negative right”) by prohibiting governments from making some birth control methods illegal.  Although there is no explicit reference to contraception in the Constitution, the Supreme Court found the right to be implied by a number of other “negative rights” in the Constitution, which the Court construed to create a more general “right of privacy.”

The creation (or recognition, depending on your point of view) of such a “negative right” does not imply a “positive right” to have contraception provided, either by the taxpayer, the employer, or the insurance company.  To be sure, many “positive rights” have been created through the insurance law – preventing insurance carriers from denying coverage for certain essential emergency services.    However, mandatory coverage generally has not been extended to anything of a medical nature a person might want.

One of the problems with creation of a “positive right” is that it also creates an obligation on the part of someone else to provide it.  Some object to a “positive right” to contraception because the people who would have to provide it, the insurance companies and the employers that have to fund them, may have  religious or other objections to providing contraceptives.

Under current Supreme Court interpretation, the Constitution probably does not protect any freedom of religion right not to provide contraception.  This is because, subject to certain exceptions, the Supreme Court has held that the First Amendment protection of religious liberty does not excuse compliance with “generally applicable law” which does not reference religion.  Nevertheless, the religious liberty interest is deemed by some to be worth protecting, even if not required by current Constitutional interpretation.

The foregoing is probably not going to persuade anyone to change their minds on the current contraception debate.  However, both sides should recognize that the other side’s position is supported by reason and merit, and neither side’s position is mandated by the Constitution.

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WWJD – What Would Jefferson Do?

By Sam Ventola,

Thomas_Jefferson_by_Rembrandt_Peale,_1800The current controversy regarding military involvement in Libya, and whether congressional authorization is required, raises an instructive lesson in constitutional interpretation.

As you probably know, President Obama has committed US forces to assist other NATO countries in aiding Libyan rebels in overthrowing long-time dictator Muammar Gadfafi. He has not sought or obtained approval of Congress for this action, and many in Congress contend that he has exceeded his constitutional power and/or violated the War Powers Act, which requires the president to seek congressional authorization within 60 or 90 days of starting “hostilities.”

The Constitution gives the President the exclusive power to act as commander in chief of the armed forces. However it gives Congress the exclusive power to declare war. The legal issue is whether the operation in Libya is considered a “war,” or merely standard military operations as directed by the commander in chief.

The War Powers Act issue is essentially irrelevant. Because the Constitution divides the military responsibility between Congress and the President, what a later statute has to say about it would not govern. If the action is “war,” the Constitution requires congressional authorization, and the War Powers Act requirement is meaningless. If the action is “commander in chiefing,” then any attempt by congress to remove that power from the president by statute would be unconstitutional.

So what does the Constitution say about the current Libya issue? Is it “war” or acting as “commander in chief?” Some legal scholars, your humble author included, believe that the Constitution should be interpreted according to “original intent;” what would the founding fathers have interpreted their own words as applied to the current situation? It so happens that we have a historical example from the presidency of a principal author of the Constitution, Thomas Jefferson. What’s more, the issue arises in the very same part of the world.

In the late 1700s and early 1800s, the North Africa region now known as Algeria, Libya and Tunisia was rule by pirate warlords. These pirates would seize US and European ships and demand tribute and ransom. By 1800 payments in ransom and tribute amounted to twenty percent of the US government’s revenues, and upon his inauguration in 1801 Jefferson refused to pay further tribute and sent warships to the region.

In his annual address to Congress on December 6, 1801, Jefferson noted that on his own authority he sent a squadron of naval ships to the Tripoli region. However, the took the position that they had been ordered to act only defensively. He stated that he was “[u]nauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense” and asked Congress to consider authorizing offensive action.

It should be noted that it does not appear that Jefferson considered it a close case. If offensive operations were to take place, he assumed that congressional authorization was needed.

Despite the similarity of place, there are important differences between the situation in Libya today and what occurred in Jefferson’s time. Although the forces dedicated by the US to Libya are larger than Jefferson had dedicated to the Tripoli mission, they also represent a much smaller percentage of our armed forces. Further, the Obama administration maintains that US forces are not engaged in “war” because US personnel are not directly engaged in attacks. Nevertheless, those considering whether congressional authorization is necessary for the current Libya campaign should consider how Jefferson and the other founding fathers viewed the situation historically.