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News Posted on February 28, 2014

Ken Starr Speaks at King Hall on Hobby Lobby Case

Ken StarrKen Starr, former Solicitor General of the United States and current President of Baylor University, spoke at King Hall on February 25, delivering remarks on the closely watched U.S. Supreme Court case Sebelius v. Hobby Lobby Stores, Inc. The event included introductory observations from Associate Dean and Professor Vikram Amar and commentary from Professor Alan Brownstein.

Starr, who has argued 36 cases before the U.S. Supreme Court, served as Solicitor General during the administration of George H.W. Bush. He also served as U.S. Circuit Judge for the District of Columbia Circuit from 1983 to 1989, and Independent Counsel from 1994 to 1999.  He is a graduate of Duke Law School and former clerk for Chief Justice Warren E. Burger from 1975 to 1977 and for Fifth Circuit Judge David W. Dyer from 1973 to 1974.

The Hobby Lobby case concerns whether the Religious Freedom Restoration Act of 1993 (RFRA) allows a for-profit corporation to deny employees health coverage (including contraceptives to which the employees are otherwise entitled under the Affordable Care Act) based on the religious objections of the corporation's owners. Starr's presentation reviewed the history of the RFRA, which he described as an "ongoing conversation" regarding religious freedom.

The RFRA has its roots in Sherbert v. Verner, the 1963 case in which Justice William Brennan, writing for the majority, held that "only the greatest abuses endangering paramount interests give occasion for permissible limitation" of religious expression, Starr said. That standard was applied in cases including Wisconsin v. Yoder, he noted, but changed significantly after a majority of the Court ruled in the 1990 case Employment Division v. Smith  that legislation that incidentally impacted religious expression can be constitutional as long as the laws were "generally applicable" and neutral with regard to religion. In response, Congress passed the RFRA with near-unanimous support, reinstating the strict scrutiny invoked by Justice Brennan in Sherbert. "It could have been called ‘the Justice Brennan Jurisprudence Restoration Act,'" Starr said.

In 1993 in City of Boerne v. Flores, the RFRA was held to be unconstitutional, but only in its application to states, "and so the conversation continues," said Starr, as Hobby Lobby involves the RFRA's applicability to federal laws such as the Affordable Care Act. In the present case, the Court could hold that the RFRA protects Hobby Lobby, or take an "exit ramp" and decide that religious freedom protections don't apply to for-profit corporations, Starr said.

Professor Alan Brownstein offered brief comments following Starr's lecture. Calling Hobby Lobby "one of the most complicated cases I've ever seen," Brownstein said he was "relatively sympathetic" with Hobby Lobby.

"Freedom of conscience is a lot like freedom of speech," Brownstein said. "If we're serious about freedom of speech, we don't just protect the speech we like; we protect the speech we hate. If we're going to protect the freedom of conscience, we have to protect not only the conscience that adheres to our values but consciences that adhere to values that are very foreign to our beliefs."

In addition to his lecture, Starr's visit to King Hall also included a question-and-answer session with students and a session with the Wine Law class taught by Tracy K. Genesen, a partner in the San Francisco office of Reed Smith.

Full video: Ken Starr at UC Davis School of Law