Kathleen Parker March 26, 2014

When it comes to tackling complicated legal issues, one would behard-pressed to conjure a less likely partnership than Harvard lawprofessor Alan Dershowitz and Baylor University President Ken Starr.

Well, okay, there was the David Boies and Ted Olson confederacy fighting forgay marriage rights after they took opposite sides during the 2000Bush-Gore election dispute. Still, witnessing Dershowitz and Starrdiscuss and largely agree on religious liberty issues raised by the case popularly known as Hobby Lobby was pleasantly jarring.

The twoconvened at the Willard Hotel on Monday, the day before oral argumentsin the case were presented to the U.S. Supreme Court. In a delightfulback-and-forth punctuated by yarns and anecdotes, the two legalluminaries affirmed at least two points of agreement: (1) separation ofchurch and state is good for religion; (2) corporations are people andpeople are corporations (echo Mitt Romney?) and, therefore, Hobby Lobbyshould be permitted an exemption from the contraceptive mandate imposedby the Affordable Care Act (ACA).

To back and fill a bit: HobbyLobby Stores Inc., a family-owned arts and crafts chain of more than 500 stores and 13,000 employees, is the lead plaintiff in a lawsuit against the federal government. Hobby Lobby President Steve Green, who told adinner crowd Monday night that he has distributed Bibles to a billionpeople worldwide through his personal ministry, claims that he shouldn’t be forced to participate in what he views as life-terminatingcontraception, including IUDs and the so-called morning-after pill.

The core of the argument is that Green’s business is protected by theReligious Freedom Restoration Act (RFRA), passed by Congress and signedby President Bill Clinton in 1993. The RFRA basically requires that thegovernment prove “compelling interest” when someone’s religious rightsare “substantially burdened” by what the state wishes to do. Althoughindividuals and religious groups are clearly covered by the RFRA, itisn’t clear whether the act’s protections also extend to companies.

Dershowitz and Starr kicked off an afternoon of discussions as part of a symposium co-sponsored by Baylor University and Georgetown University’s BerkleyCenter for Religion, Peace & World Affairs. Starr, a former U.S.solicitor general, described the lawsuit as a “conflict of vision” — big government vs. a family that has devoted itself to Christian missionwork. While Starr’s stewardship of a Baptist university might make hisfavorable view of the plaintiffs’ position unsurprising, Dershowitz’ssympathy for Hobby Lobby may come as a surprise to many.

Proclaiming his love both for religion and the separation of church and state, hecalled the government’s brief “silly and trivial.” And though he thinksbirth control is good for society — and he approves of the ACA — neither of those considerations matter.

It’s the principle.

Contrary to protestations from certain entities that subvert all issues forpolitical gain, the Hobby Lobby case is not about birth control orwomen’s rights or even universal health care. It is, in Dershowitz’ssummation, about “whether or not the statutes in the penumbra of theConstitution require a religious exemption.”

Period.

As afinal note of clarification, the Green family did not pick this battle.The federal government did when it imposed what could be considered asecular belief system on people who happen to be business owners withstrong religious convictions about abortion and abortifacients.

In a brief sidebar: Don’t you find it curious that the biological fact oflife at conception is characterized as an article of faith (religious),while denial of that life vis-a-vis its involuntary termination isviewed as ultimately sacred? One of life’s little mysteries.

Whatever one’s views on these matters, they are of no consequence. The fact that I personally favor birth control doesn’t alter the logic of what I’vejust written. It merely suits me to believe as I do in order to getthrough life as I find most convenient. It doesn’t make me right, except under secular law, which a great many people find less compelling thanthe higher laws of nature — or of God. Your choice.

In any case,the first principle of religious freedom should be treated as paramount, as often and at every stage possible, agreed both Starr and Dershowitz. And both hope that the Supreme Court will find a way to accommodateHobby Lobby.

The court’s ruling is expected sometime in June. Inthe meantime, one wishes only to bottle the gracious, erudite andhumorous civility of Dershowitz and Starr and infuse the water supply of the nation’s capital. Perhaps a dash or two of their significant brainpower might also filter through.