One week after the Supreme Court's landmark Hobby Lobby ruling that for-profit companies are protected by the Religious Freedom Restoration Act, the White House and the co-counsel for the family-owned chain store that won in court are clashing.
The issue is how to ensure religious liberty for nonprofit organizations, which are the subject of more than 50 coming courtroom fights.
Shortly after the court ruling last Monday, Joshua Hawley, senior counsel for the pro-religious freedom Becket Fund and co-counsel for Hobby Lobby, told Newsmax, "[I]t would not take an act of Congress but only the stroke of a [presidential] pen" to craft an exemption for nonprofits from providing healthcare services that clash with their religious beliefs.
But when Newsmax posed Hawley's view at the regular White House briefing Monday, Press Secretary Josh Earnest made it clear the administration had a different opinion on how to deal with the issue of religious exemptions for the 50-plus nonprofits now in court (ranging from the Little Sisters of the Poor religious order to religious higher-education institutions such as the University of Notre Dame and Wheaton College).
"Our belief for handling this situation is that the Supreme Court in the Hobby Lobby decision struck down one part of a statute that was passed by both Houses of Congress and signed into law by the president," Earnest told Newsmax. "So, our view about the best way to resolve this situation is for Congress to pass a law.
"I am not naïve about the difficulty that Congress has in taking steps like this, but in this particular matter our first priority for resolving the situation is the passage of a new law through Congress."
Although not ruling out an executive order, Earnest did say that "our first priority is for Congress to take action, and that's what we would like to see. The Supreme Court struck down one part of a statute, so the best way to resolve this situation is for Congress to pass a law."
Reached later in the day by Newsmax, Columbia, Mo., lawyer Hawley reacted sharply to the words of the president's top spokesman.
"Mr. Earnest is factually mistaken," Hawley told Newsmax. "It will not take an act of Congress to resolve the court cases dealing with religious objections because 'Hobby Lobby' dealt squarely with the contraceptive mandate — a regulation not part of the Affordable Care Act."
Rather than being part of any legislation enacted by Congress, Hawley explained, the mandate in question is an order from former Health and Human Services Secretary Kathleen Sebelius that requires employers to pay for contraception.
"The White House should look at the court's decision in the Hobby Lobby case and its injunctions in Little Sisters of the Poor and in the Wheaton College case last Thursday, and change the mandate to match those orders," he said.
In both situations, added Hawley, "the Supreme Court was essentially telegraphing that there was a way the administration can revise the regulation for the nonprofits. And that is for the administration to simply change the rule in such a way that it does not require the nonprofits to authorize third parties to provide objectionable drugs.
"I hope they will. But the signs so far are not encouraging."
John Gizzi is chief political columnist and White House correspondent for Newsmax.
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