The Dec. 1 editorial (“Religion as a sword in the ACA debate”), criticizing those who take exception to providing contraceptives and abortifacient drugs under Obamacare, was both factually and legally off the mark. The Hobby Lobby Corp.’s defense of its religious liberty is not a sword that threatens reproductive choice or the conscience rights of its employees. It is a shield against impermissible government burdens on religion.
The First Amendment protects not just religion in a sanctuary but religion as a way of life. The drafters of the amendment were well aware that faith is lived as much as proclaimed. The First Amendment is one of the rare times the word “no” is used in the Constitution to limit the powers of the federal government. James Madison called freedom of religion the first freedom, as indeed it is.
To protect the application of the First Amendment after it had been made impotent by the U.S. Supreme Court, Congress passed and President Bill Clinton signed into law the Religious Freedom Restoration Act (RFRA). The act protects churches and individuals, both prolife and prochoice, in their public faith walks. It requires all laws burdening religious freedom to be the least restrictive way of meeting a compelling governmental interest. As a number of federal courts have concluded, the law protects individuals, corporations (which are simply associations of people) and churches (which are often corporations).
Hobby Lobby is a closely held, private, family corporation, not a publicly traded company. Its owners, the Green family, seek to run their business according to their values. As Christians, they see business not just as a secular, value-neutral task, but as a calling.
Hobby Lobby has a self-imposed companywide $14-per-hour minimum wage. It closes its stores on Sundays and early during the week to give employees quality free and family time. It offered health insurance when it wasn’t standard in the retail industry. It offers classes to employees to strengthen their families. The Greens do this as part of their faith walk. They should be encouraged to let their values infuse their business, not punished.
The Obamacare preventive-services mandate, under the disguise of protecting women’s health, requires Hobby Lobby and others who have conscientious objections to fund access to contraceptive products in their health plans, even though contraception is cheap and widely available. No federal law had required such coverage in the past.
Hobby Lobby has risked a $1.4 million per day fine to contest this law. Other private companies and religious organizations also face fines for exercising their faith. Under RFRA, these companies have proved that there is no compelling national need to invade their faith life, and they have shown that no reasonable alternatives to the contraception mandate were even considered. The Supreme Court will hear these cases this spring.
The Star Tribune Editorial Board asks what the consequences will be if Hobby Lobby prevails, indicating that more accommodations in Obamacare will need to be provided to religious communities and corporations. Yet what makes the contraception mandate so unjust and clearly targeted against socially conservative Christians is that Obamacare does already provide many accommodations to certain religions, such as Christian Scientists.
It’s not just private companies that suffer at the hands of the Obamacare contraception mandate. Religious schools, free Christian medical clinics, soup kitchens, companies with less than 50 employees who choose to offer health insurance (although not legally required to do so) and even individuals in state-run exchanges will all face penalties for not complying. The mandate even requires the Little Sisters of the Poor to fund contraception, which threatens to drive them and their charitable work from the United States.
The people who suffer most from the contraception mandate are those employed and served by the for-profit and nonprofit religious organizations covered by the mandate. Thankfully, the brave organizations fighting this unreasonable and unjust mandate have been winning overwhelmingly in the courts because the First Amendment means just what it says and protects believers and nonbelievers alike. Let us hope Hobby Lobby and others succeed at the U.S. Supreme Court.
David Murrin, of Hopkins, is a retired lawyer and adjunct professor at William Mitchell College of Law.