Baylor’s Ken Starr weighs in on Hobby Lobby case at DC event

As Supreme Court begins grappling with contentious religious liberty case, Baylor and Georgetown University look at its potential impact.

By Robert Dilday

One day before the Supreme Court was to hear oral arguments in what may result in its most significant religious liberty ruling this term, the president of one of Baptists’ largest universities joined a noted Harvard law professor at a high-profile Washington forum March 24 to unpack the complex legal issues.

Ken Starr, a former U.S. Solicitor General and president of Baylor University since 2010, and Alan Dershowitz of Harvard Law School focused on the Hobby Lobby case, one of two in which the high court must decide if employers with religious objections may refuse to provide their workers with insurance coverage for contraceptives as mandated in the Affordable Care Act.

Starr Dershowitz WebThe forum was part of an all-day conference touted as the inaugural event in a new religious liberty partnership between the historically Baptist university in Waco, Texas, and Washington-based Georgetown University, the nation’s oldest Catholic institution of higher education. Co-sponsoring the conference were Baylor’s Institute for Studies of Religion and the Religious Freedom Project of Georgetown’s Berkley Center for Religion, Peace and World Affairs.

The public affairs cable network C-SPAN televised the conference held at the Willard Hotel, two blocks from the White House.

The Hobby Lobby case — brought by the Baptist owners of an arts-and-crafts chain which they say is run on biblical principles — raises a question never confronted by the Supreme Court: whether secular, for-profit corporations are exempted from complying with a law if it conflicts with the owners’ religious beliefs.

The Green family, which owns the 640-store chain, believes some contraceptives and intrauterine devices may result in the destruction of human embryos — at odds with their religiously based pro-life views.

Also at stake is the constitutionality of the Religious Freedom Restoration Act, overwhelmingly approved by Congress in 1993, which aims to prevent laws which substantially burden a person’s free exercise of religion.

Starr and Dershowitz — a self-described skeptic who said he disagrees with the Greens’ view of birth control — largely dismissed the government’s argument that constitutional guarantees of free exercise of religion apply only to individuals and not to for-profit corporations.

“The oddity of this entire argument on the part of the government that because [Hobby Lobby] is a for-profit corporation, and that if they had remained as five [family] partners they would have had full protection," Starr said. "At what moment did that magic occur, that you had religious liberty rights and now you don’t?”

“I think the prospects are bright for Hobby Lobby and are dim for the government …,” he added. “The argument made that Hobby Lobby lost its rights when they marched downtown in Oklahoma City and filed articles of incorporation with the secretary of state borders in my judgment on the frivolous.”

“I find that to be an absurd argument being made by the government,” agreed Dershowitz. “I thought the government’s brief on that issue was trivial and silly. … You are the corporation and the corporation is you. That’s a religious principle and it seems to me that if the court were in any way to try to undercut that religious principle by citing state law about what a corporation is … they would be falling into the trap of themselves violating the free expression of religion clause.”

But they disagreed on what might constitute an “unfair burden” under the provisions of the Religious Freedom Restoration Act. RFRA asserts that religious exercise can be restricted only if there is a “compelling government interest” and if that interest is pursued in the least restrictive way.

“Every American who loves freedom should be applauding the statute that is at issue tomorrow in the Hobby Lobby case — the Religious Freedom Restoration Act,” said Starr.

The law provides a framework for protecting religious expressions, in part by permitting exemptions on the basis of strongly held religious beliefs, he said.

Dershowtiz, however, said that while he endorsed the RFRA standard, “when it comes to issues like whether or not a … family owned corporation should be allowed to be exempted from providing a service that perhaps many employees would benefit from, that’s a much more complicated and difficult question.”

The key is to find a middle ground, he said, to launch a “search for accommodation at every stage.”

“We have to try to figure out a way of not requiring you to compromise at all with your religious views, but also make sure it doesn’t hurt those whose religious views are different from yours.”

In the Hobby Lobby case, he said it was important to ensure the company’s employees were not disadvantaged by the exercise of the owners’ religious beliefs.

Starr responded that government already provides numerous exemptions to legal requirements.

“There are mechanisms to achieve this balance of accommodation you’re talking about. … The government has a huge Achilles’ heel [in making its case] … in that there are exemptions galore.”

Deciphering the legal aspects of the Hobby Lobby case dominated the conversation, but perceptions of hostility to religion in American life which are driving some public debate about the case inevitably slipped in.

“There is a growing sense that if you are a person of deep religious faith you’re in the crosshairs now,” Starr said. “There are people here from different religious communities who feel genuinely embattled in terms of freedom of conscience. … Has the culture shifted?”

If so, the fault lies with religious believers, said Dershowitz.

“You haven’t done a good enough job in the marketplace of ideas to persuade Americans of your point of view. I agree with you, I think you’re losing the battle among young people.”

Don’t ask for the help of government to bolster religion, he said. “Do a better job. Go out there and make religion more relevant in the life of young people. You have to figure out — and it’s your job — a way of making people love what you believe in and love what you’re doing.”

Among the participants at the March 24 event were members of the Green family, in Washington for their case’s oral arguments. The family is using its considerable resources to build a Museum of the Bible near the capital’s National Mall to display a collection of more than 55,000 biblical artifacts.

The Greens also have been financial supporters of Baylor, making significant contributions to the university’s Institute for Studies of Religion and funding the Green Scholars Initiative, for which Baylor is a major research partner.

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Scholar claims in legal brief that RFRA is unconstitutional

ERLC supports Hobby Lobby in Supreme Court brief