Why should the constitutional right to free exercise of religion depend on the type of entity exercising it?
This point may seem obvious to many U.S. citizens, but the current administration has fought hard across the country to isolate religious liberty into narrow categories.
The U.S. Supreme Court heard oral arguments March 25 in one of the most important religious-liberty cases in a generation: Hobby Lobby stores, represented by the Becket Fund for Religious Liberty, want the high court to confirm established law and declare that the Constitution protects even for-profit businesses in the exercise of their religious liberty. Under the HHS mandate, which Hobby Lobby is challenging, companies face steep fines and bankruptcy if they choose to follow their faith. The mandate requires that all public companies provide health-insurance coverage that includes contraception, abortion and abortion-causing drugs.
The original mandate, for example, exempted institutions that were solely staffed by and only catered to people of the same faith, at a stroke demeaning the charitable work of thousands of religious charities, hospitals and other institutions. This tactic was widely ridiculed, and the government tried other strategies to avoid being thrown into court. None of them acknowledged the government’s basic, flawed assumption: that despite the constitutional language, religious liberty could be trumped by whatever secular values the government thought important at the moment.
This is the exact opposite of what the Constitution means. What Hobby Lobby’s case illustrates is a clear clash of cultures. For example, in the Hosanna-Tabor case, the government argued that employment law should trump the centuries-old "ministerial exemption" to hiring employees by religious institutions. The Supreme Court ruled 9-0 to retain the exemption, recognizing that the government should not be able to dictate how a religious institution hires people to further its mission and that the state should not be in the position of judging how religious a person’s job needs to be to justify the exemption.
On the one side are most U.S. citizens. Our political culture has been, until recently, very accepting of religious and other exemptions, allowing people to live as their faith dictates. Americans are generally happy to let people live their lives as they see fit. This kind of tolerance may cause some friction and the need for understanding, but it allows the maximum range of protection for conscience.
On the other side are those pushing a very secular view of culture, where religion is merely "freedom to worship," and all other activities that spring from faith can be regulated or prohibited. For this group, the Gospel injunctions to charity, for example, are incomprehensible; they simply may not understand why Christians are enjoined not just to pray, but also to preach the Good News through their public and private actions, including in business. Their view also accords a much larger role for government intervention in private lives. The government’s position is very much that religion is something that has little to do with the hard realities of living, which can be regulated by the government. This would come as a surprise to generations of Christians and other believers, not only those who operate businesses, but all who try to live in the world according to their faith.
Those supporting the HHS mandate argue that their understanding of "health" and "equality" justifies overriding the faith of families like the Greens, owners of Hobby Lobby. As courts have pointed out, however, the HHS mandate already exempts millions of employees due to political bargaining to get Obamacare passed; why is forcing religious businesses to violate their principles so crucial to furthering the government’s interest? And some courts have gone further and held that even if you believe the government, that some vague definition of "health" requires employers to overturn their religious convictions, the mandate is far from the only constitutionally permissible way to do it.
The government should have to think harder and more carefully about how it infringes on religious liberty before passing regulations affecting millions of believers. The court can, therefore, decide in favor of Hobby Lobby and other religious businesses without getting into the trickier constitutional questions as to whether for-profit entities can be considered "persons" who can exercise the religious liberty of their owners.
Further, these cases demonstrate the ideological bias behind them. Companies support all kinds of causes as a way to express corporate culture or values. There is no push by the government, for example, to punish companies for, say, spending money supporting same-sex "marriage" laws, environmental issues or other secular causes.
Only religious values are considered dangerous and should be restricted, HHS mandate supporters argue. And only some religious values at that; Hobby Lobby can continue to close its stores on Sundays, presumably, or a kosher butcher on Saturdays — at least until the state decides that some value requires them to be open. And indeed the government, in its argument before the court, suggested that kosher or halal butchers who incorporated would thereby lose their religious liberty — and therefore could be forced to slaughter meat on the Sabbath in violation of their faith.
However, as the Founding Fathers recognized, religious liberty is the first liberty, without which political society becomes tyrannous. This core constitutional understanding is consistent with Catholic teaching; as Dignitatis Humanae states, "[r]eligious freedom … which men demand as necessary to fulfill their duty to worship God, has to do with immunity from coercion in civil society." The Supreme Court should follow the Constitution and affirm the full extent of religious liberty.
Gerald J. Russello is editor of The University Bookman.