Thank goodness there are women on the Supreme Court: That was a common sentiment I heard on cable news Wednesday in the wake of oral arguments at the Supreme Court challenging the Obama administration’s abortion-pill, contraception, and sterilization mandate on the Hobby Lobby arts-and-crafts chain and Conestoga Wood Specialties, a Mennonite cabinetmaker in Pennsylvania. Lori Windham is part of Hobby Lobby’s legal team and senior counsel at the Becket Fund for Religious Liberty. She talks with National Review Online’s Kathryn Jean Lopez about women, religious freedom, Hobby Lobby’s day in Court, and more.
KATHRYN JEAN LOPEZ: Walking away from the Supreme Court on Tuesday, did you see Sebelius v. Hobby Lobby Stores, Inc., as pitting women’s rights against a claim to corporate rights?
LORI WINDHAM: Absolutely not. This case is about the rights of all Americans — women and men — to live out their faith. You don’t give up your religious freedom when you earn a living. Barbara Green didn’t give up her freedom when she and David founded Hobby Lobby.
It’s important to note that Hobby Lobby’s employees are free to make their own decisions about health care and contraception. Hobby Lobby already covers the most popular forms of contraception, and it doesn’t try to stop its employees from using the others. The Greens are not denying rights to anyone; they ask only that their own rights be respected. Our government says that the Greens’ rights disappeared the day they lived the American dream by incorporating their family business. I say that the American dream shouldn’t be off-limits to people living out their faith.
LOPEZ: There’s been a lot of commentary insisting that it is a good thing there are women on the Court because they were quick to question Paul Clement’s claims on behalf of Hobby Lobby and Conestoga Wood Specialties. What do you make of that?
WINDHAM: I’d say it’s a good thing women like Barbara Green and Elizabeth Hahn keep bringing these cases! Women were represented on both sides of the issues yesterday. It’s insulting to women jurists — not to mention great advocates like Paul Clement — to assume that people must take a particular legal position because of their gender. We’ve seen brilliant arguments against the mandate from women judges, most notably Judge Sykes of the Seventh Circuit, who wrote Korte v. Sebelius, and Judge Brown of the D.C. Circuit, who wrote Gilardi v. HHS. Both of those women ruled against the HHS mandate and understood the critical point in these cases — that Americans do not give up their religious freedom when they earn a living.
LOPEZ: I saw a number of Becket women lawyers coming out of the Court yesterday. Do you have any qualms working on this case? Particularly when people talk in terms of women’s rights and health and freedom being on the line?
WINDHAM: I’m honored to be part of this case. My colleagues at the Becket Fund — women and men — feel the same. I’ve always seen this as a case about freedom from government coercion of religion. Religious freedom is a women’s right, too. As a woman and a mother, I care deeply about whether my own religious practice will be respected, and about what kind of freedoms will be in place for my daughter. I hope the Hobby Lobby ruling will make those freedoms more secure. I was proud to sit in the Court yesterday as part of Hobby Lobby’s team.
LOPEZ: Were you worried about the vaccine comparisons?
WINDHAM: I was not worried about the vaccine comparisons, and nobody else should be, either. The Religious Freedom Restoration Act strikes a balance between religious freedom and other government goals. If the government’s interest is truly compelling, as it likely would be in a vaccine case, then the government can win even under RFRA. Here’s what a unanimous Supreme Court had to say about that kind of hypothetical: “The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But . . . Congress determined that the [RFRA] test ‘is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.’” That’s what the Court said in O Centro, the last time RFRA came before the Court. That precedent ought to control here.
LOPEZ: What do you think is the most likely ruling?
WINDHAM: As we saw with NFIB v. Sebelius, post-argument predictions have a way of going wrong. I’m encouraged by the arguments and hopeful for a good decision. There seemed to be a lot of skepticism of the government’s arguments, particularly its argument that RFRA protects nonprofit corporations but not for-profit corporations. After the emphasis placed on that argument in the briefing, I was surprised to hear so few questions directed to that issue.
LOPEZ: What argument do you hope people trying to understand the case heard Tuesday?
WINDHAM: I hope they understand that this case is about Americans, women and men, living out their faith. Whether you agree or disagree with the Green family about religion, I hope you will agree that the government should not have unfettered authority to strip family-business owners of fundamental freedoms.
— Kathryn Jean Lopez is editor-at-large of National Review Online.