Fox Misleads On Religious Belief And Contraception To Attack Health Care Mandate

Blog ››› ››› LARA SCHWARTZ

Right-wing attorney Jay Sekulow appeared on Fox News to argue that for-profit corporation owners' religious beliefs trump federal law when it comes to contraception, even while they take advantage of the legal benefits corporate status provides.

On America's Newsroom, host Bill Hemmer featured Jay Sekulow of the American Center for Law and Justice, who is also known for claiming that President Obama was threatening military voters and promoting laws outlawing homosexuality. The show gave Sekulow a platform to promote attacks on the Affordable Care Act's provision requiring employer-provided health plans to include contraception coverage.  

Sekulow's group and others have sued to block the mandate on behalf of corporations seeking to deny access to contraception on religious grounds.  The results have been mixed.  The U.S. Court of Appeals for the Seventh Circuit blocked the law as it applied to the owners of Korte & Luitjohan Contractors.

The U.S. Court of Appeals for the Tenth Circuit, however, denied Hobby Lobby, an Oklahoma-based corporation, the relief it sought.

In discussing the Hobby Lobby case, Hemmer asked Sekulow to explain "why you believe legally they win this." Unchallenged, Sekulow touted his court wins on other cases regarding the enforcement of the mandate, stating:

Well, for the same reason, Bill, we've won three cases that we brought so far. And that is the right of free exercise of religion, applies to these companies that have principles that the owners of these companies have religious convictions and to force or compel someone to violate their conscience is exactly what the free exercise clause of the constitution of the United States was designed to prevent.

But Hemmer failed to push back on Sekulow's claims and provide an accurate picture the current state of the law.  In fact, the highest level ruling reached the opposite conclusion.  Supreme Court Justice Sonia Sotomayor (sitting as circuit justice reviewing decisions of the U.S. Court of Appeals for the 10th Circuit), denied Hobby Lobby's request for an injunction relieving them of their obligation to provide this coverage to their thousands of female employees.  She noted that: 

This Court has not previously addressed similar [Religious Freedom Restoration Act] or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion.

Many legal scholars have also rejected Sekulow's and Hobby Lobby's position. 

Hemmer also gave Sekulow a pass on his assertion that corporations, which are not human beings, have religious rights like people do.   This presented an imbalanced and inaccurate view not only on religious liberty but also on corporate law.  As Supreme Court analyst Lyle Denniston observed:

[B]usiness people who form corporations do so to keep themselves independent from it: one of the main advantages of the corporate form is that the owners are not targeted when their company gets sued.

Hobby Lobby and Sekulow are trying to have it both ways: when a creditor comes to collect a bill or a party sues the corporation they own, they don't have to pay because a corporation is separate.  Then they turn around and claim that they are not obligated to abide by a law they don't like because they and the business are one and the same. If courts adopted the theory that corporations have religious rights, corporate owners could game the system, hiding behind corporate status when convenient and discarding it when it's not.

We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.