BY KEVIN COLLISON
The Kansas City Star
For the owners of JE Dunn Construction of Kansas City, it’s clear: Providing insurance coverage for any birth control method that induces an abortion, as required by the Affordable Care Act, violates their Roman Catholic faith.
And in the Kansas Legislature, lawmakers debated a measure last week intended to ensure that business owners who morally object to same-sex marriage won’t be punished if they refuse to serve gay couples.
Welcome to the ongoing cultural turf battle so prevalent in the United States these days, where the rights of individuals clash with public policy.
On one side are business owners who believe they have a First Amendment right to run their companies according to their religious beliefs.
On the other are the Obama administration and supporters who say that for-profit businesses are not the same as individuals when it comes to practicing religion and that employees of such businesses or their customers shouldn’t face discrimination for following their moral compasses.
The debate in the Kansas Legislature over protecting business owners if they turn down gay customers — or in the eyes of opponents, legalizing discrimination — ended the week unresolved. While the House overwhelmingly approved a measure, the Senate is balking.
However, the U.S. Justice Department last week instructed its employees nationwide to grant same-sex couples equal recognition in federal legal matters, including bankruptcies, prison visits and survivor benefits.
The Obamacare controversy over contraceptive coverage is expected to hit center stage next month when the U.S. Supreme Court begins hearing arguments in the Sebelius v. Hobby Lobby Stores case.
The Oklahoma City-based retailer operates 500 crafts stores nationwide and, in keeping with its owners’ Christian faith, all are closed Sundays.
JE Dunn has filed a brief supporting Hobby Lobby’s objection to being required to provide birth control methods that include a category of emergency contraceptives, one of those being the morning-after pill.
Hobby Lobby’s suit contends that emergency contraception is tantamount to abortion because it can prevent a fertilized egg from implanting, a stance some disagree with.
In response to questions, Steve Dunn, chairman of the Kansas City-based national construction firm, said in an email: “JE Dunn has a long history of supporting religious organizations and has established policies that are consistent with the Dunn family’s Catholic heritage, such as excluding insurance coverage for drugs that act as abortifacients.”
But to those who support the requirement that all legal forms of birth control be covered by Obamacare, it’s a clear case of preventing discrimination against women.
Jamie Tomek, president of the Missouri chapter of the National Organization for Women, said all women are entitled to birth control coverage at their workplace.
“Women’s rights to medical procedures are as important as religious rights,” she said. “We certainly feel that women are entitled to birth control through their employer’s insurance.
“It’s the 21st century and that’s a way women can protect themselves to be productive members of society.”
The American Civil Liberties Union, in its brief supporting the government, acknowledges that public debate is enhanced by participants expressing the view of their faith.
“But once that debate is resolved through the democratic process,” according to the ACLU, “those who disagree with the resolution on religious grounds are no more entitled to exemption from anti-discrimination laws governing commercial activity … than those who who dissent on other ideological grounds.”
Dunn is not alone among local companies opposed to the Obamacare birth control requirement. An even stronger stance is being taken by Sioux Chief Manufacturing, located in Peculiar in Cass County.
Sioux Chief does not provide insurance coverage for any contraceptives for its 450 employees and the firm obtained a temporary injunction in federal court a year ago exempting it from the Obamacare requirement.
Like the Dunns, Joseph P. Ismert, the company president, says the company’s position is required by his Catholic faith.
“When did the government say once you own a business, you no longer have religious freedom?” Ismert said. “It’s my choice. If people don’t want to work for me, they can go as they please.
“Nobody complains and it’s not that they’re shackled to their machines.”
Allen K. Rostron, a University of Missouri-Kansas City law professor who teaches constitutional law, said that until Congress intervened in 1993, the U.S. Supreme Court had not given the exercise of religious freedom all that much protection.
“In cases years ago, you didn’t have a right to free exercise of religious freedom unless government was discriminating against you,” Rostron said. “If government just had a law that happened to burden your religious beliefs, too bad, you were out of luck.”
It was the high court’s 1990 decision in the Employment Division v. Smith case that prompted Congress to get involved.
Two Oregon men claimed their religious beliefs had been violated when they were fired for using peyote, an illegal hallucinogenic, and the state denied their unemployment benefits. The men said peyote was a ritual in the Native American Church.
The Supreme Court, however, ruled that since peyote was illegal for everyone, the law did not discriminate against the two men’s First Amendment right to religious freedom. That decision led to Congress passing the Religious Freedom Restoration Act in 1993.
It required that government had to show it had a compelling reason to pass a law that substantially burdened a person’s ability to practice their religion.
The Religious Freedom Restoration Act meant a law could harm religious freedom even it if didn’t specifically target a religion, said Eddie Greim, a Kansas City attorney who specializes in constitutional law.
How the Religious Freedom Restoration Act applies to Obamacare is what’s at stake in the Hobby Lobby case supported by JE Dunn, Sioux Manufacturing and dozens of other businesses.
The Obama administration already has attempted to accommodate purely religious institutions and charities objecting to the birth control requirement, allowing their employees to receive coverage directly from insurers at no cost. That arrangement, however, also is being challenged in court.
In the case of for-profit companies like Hobby Lobby, JE Dunn and others, the administration has made no accommodation.
The administration’s position is that even if the birth control requirement violates the personal beliefs of the owners, their company is not a person entitled to religious freedom.
“The government response is Hobby Lobby is a corporation, a for-profit business. … You, the owner, are not being burdened,” Rostron said. “You don’t have to do anything; the corporation has to do this.”
“Hobby Lobby’s and JE Dunn’s view is it’s immoral and against our religion, and the new law is making us pay for it.”
The Dunn family is known in local Catholic circles for its charitable giving and in the case of its patriarch, William H. Dunn Sr., its conservative outlook.
In its brief supporting Hobby Lobby, the Dunn family states it owns 90 percent of the company and commits at least 10 percent of its pretax earnings to charity.
Bill Dunn Sr., chairman emeritus, caused a public stir in 2005 when he delivered a speech at the annual Mayor’s Prayer Breakfast that cited pornography, teenage pregnancy, same-sex marriages, activist judges, far-left media and partial-birth abortion as contributing to the moral decline of society.
His comments prompted then-mayor Kay Barnes to boycott the event the next year, objecting to the “tone and content” of Dunn’s speech.
Steve Dunn wrote in his email that while the company covers some forms of contraceptives for employees, the drugs that induce abortions by causing miscarriages, referred to as abortifacients, “directly contradicts the religious views of the family owners.”
“JE Dunn filed an amicus brief in support of Hobby Lobby … to help the court understand the effect of the abortifacients mandate on family-owned, for-profit businesses that seek to exercise their religious principles and values,” he wrote.
There are some differences between the Dunn family position that the firm operates according to Catholic moral and religious teachings, as stated in its support for Hobby Lobby, and some church teachings.
For example, Catholic doctrine bans all contraceptives, not just abortion-inducing drugs.
And the Catholic Church supports nuclear disarmament and opposes nuclear weapons. JE Dunn was the general contractor for the new nuclear weapons parts plant that was built for the National Nuclear Security Administration at Missouri 150 and Botts Road.
“JE Dunn has a long history of working with the federal government, including building military facilities,” Steve Dunn wrote. “However, electing to work with the government in that regard is different than complying with a mandate to provide abortifacients.”
Bob Hill, senior minister at Community Christian Church, said employees don’t sign on to the values of their companies when they take a job.
“It’s sad that we have to bifurcate the nation between one set of religious principles and another,” Hill said.
“I think it’s a slippery slope that gets us into a place that nobody wants us to be, including the people who are expressing their moral values by these protestations.
“I think they need to re-examine that very carefully, and prayerfully I would add, to remember that for a secular company … it’s not wise to impose your morality on the rest of your company.”
But with Congress signaling a greater sensitivity to the issue with its approval of the Religious Freedom Restoration Act, there is a sense among some court observers the Supreme Court may rule in favor of Hobby Lobby.
Greim, the constitutional law attorney, said the government may already have undermined its case that it has a compelling interest to require contraceptive coverage by the large number of employers it has already exempted from the ACA.
“I think Hobby Lobby has a very strong argument,” he said. “I’d hate to handicap the Supreme Court, but I’d put my money on the challenge.”
“If I had to bet, I’d say they’ll win this,” he said. “I think they could get the liberal court votes: ‘I’m not against the health care act, but I’m for religious freedom.’ ”