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The Montana Supreme Court voted last week 4 to 3 against the Big Sky Hutterite Colony, throwing out its suit to overturn the discriminatory provisions of a state anti-Hutterite law passed in 2009.

Cut Bank, Montana, welcome signThe colony, located near Cut Bank in northwestern Montana, had sued the state and won a lower court decision, which found that a law requiring colony businesses to provide workers’ compensation insurance for their members violated their freedom of religion. A state legislator, Chuck Hunter, who had introduced the controversial legislation in 2009, freely admitted that his bill was intended to target the Hutterites.

The Hutterites claim that their workers are actually members of a religious community, not employees, and that their work as part of colony businesses is an expression of their religious faith. Since they live in communal situations, they receive no wages—much less insurance benefits—and their “compensation” is the membership in the commune, with all the food, lodging, and other benefits provided. They can make no claims against their colonies, nor can they take money for themselves, without risking excommunication.

Because the colony businesses do not have to pay their workers wages, much less pay for their insurance coverage, they have lower costs than other Montana firms. Contractors in the state became envious of the fact that the colony construction companies frequently underbid them. The 2009 law was designed to “level the playing field,” in the words of one of their representatives. The Hutterites won in the lower court, but lost on January 2 in the Supreme Court.

Writing for the majority, Justice Brian Morris indicated that the law requiring the colonies to provide workers’ compensation insurance does not interfere with their religious beliefs. It only regulates their commercial enterprises. He cited other cases where courts have found that government regulations of commercial enterprises carried out by religious groups did not violate their freedom of religion.

Justice James Nelson sharply disagreed. He felt that the decision violates the freedom of religion provisions of the constitutions of Montana and the U.S., only to satisfy companies that argue they are at a disadvantage in trying to compete with the colonies and their lower costs. “Apparently, henceforth, ‘no law’ prohibiting the free exercise of religion does not actually mean ‘no law’ in Montana. Rather, it means no law, except to the extent that the law greases the squeaky wheal of a powerful industry,” the justice wrote.

One of the other judges who was in the minority, Justice Jim Rice indicated that the 2009 law may have given the appearance of applying to all Montana employers, but in fact it was specifically aimed at the Hutterites. He noted from the record of the debates in the legislature that the discussions were solely concerned with the Hutterite minority in the state. Judge Rice added that the system of forcing the Hutterite businesses to pay for insurance coverage that they will never use, and for which they will never receive any benefit, “defies logic and violates public policy.”