Kathleen Parker March 26, 2014

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

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

The two convened at the Willard Hotel on Monday, the day before oral arguments in the case were presented to the U.S. Supreme Court. In a delightful back-and-forth punctuated by yarns and anecdotes, the two legal luminaries affirmed at least two points of agreement: (1) separation of church and state is good for religion; (2) corporations are people and people are corporations (echo Mitt Romney?) and, therefore, Hobby Lobby should be permitted an exemption from the contraceptive mandate imposed by the Affordable Care Act (ACA).

To back and fill a bit: Hobby Lobby 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 a dinner crowd Monday night that he has distributed Bibles to a billion people worldwide through his personal ministry, claims that he shouldn’t be forced to participate in what he views as life-terminating contraception, including IUDs and the so-called morning-after pill.

The core of the argument is that Green’s business is protected by the Religious Freedom Restoration Act (RFRA), passed by Congress and signed by President Bill Clinton in 1993. The RFRA basically requires that the government prove “compelling interest” when someone’s religious rights are “substantially burdened” by what the state wishes to do. Although individuals and religious groups are clearly covered by the RFRA, it isn’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 Berkley Center 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 mission work. While Starr’s stewardship of a Baptist university might make his favorable view of the plaintiffs’ position unsurprising, Dershowitz’s sympathy for Hobby Lobby may come as a surprise to many.

Proclaiming his love both for religion and the separation of church and state, he called the government’s brief “silly and trivial.” And though he thinks birth 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 for political gain, the Hobby Lobby case is not about birth control or women’s rights or even universal health care. It is, in Dershowitz’s summation, about “whether or not the statutes in the penumbra of the Constitution require a religious exemption.”

Period.

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

In a brief sidebar: Don’t you find it curious that the biological fact of life at conception is characterized as an article of faith (religious), while denial of that life vis-a-vis its involuntary termination is viewed 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’ve just written. It merely suits me to believe as I do in order to get through life as I find most convenient. It doesn’t make me right, except under secular law, which a great many people find less compelling than the 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 accommodate Hobby Lobby.

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