The conscience wars have now expanded beyond Catholic hospitals and religiously affiliated colleges.
A couple of weeks ago, the Becket Fund for Religious Liberty filed a case challenging the U.S. Department of Health and Human Services insurance mandate on behalf of Hobby Lobby, a family-run Christian business, and its owners. This case, which has not yet garnered the attention it deserves, represents a new dimension in the struggle to overturn the mandate.
Hobby Lobby, based in Oklahoma and founded in 1970, has hundreds of stores and thousands of employees throughout the country. It was founded by David Green and is still owned and operated by the Green family, which has made a conscious effort to run the business according to Christian principles.
Indeed, the company’s statement of purpose reads, in part, that the Green family wishes to run the business “in a manner consistent with biblical principles.” The stores are closed on Sundays, for example, to give employees time at home with their families, and the company has clergy on staff for those employees who want pastoral counseling.
The owners are opposing the HHS mandate because of their opposition to abortion and the HHS mandate requirement to include abortifacient drugs in their company’s health-insurance coverage. They feel they simply cannot abide by that requirement and act consistently with their beliefs.
The complaint, filed in federal district court in Oklahoma, is part of a second wave of cases challenging the HHS mandate. The first wave was filed largely on behalf of Catholic social-service institutions and religiously affiliated educational establishments. Those complaints made the simple case that such entities were founded to act on their beliefs, and forcing them to act contrary to those beliefs has clearly violated their rights under the First Amendment.
These cases made the point that the mandate, and the secular viewpoint behind it, simply misunderstood religious freedom. According to secularists, religion is something you believe in your own mind with the door closed, but the moment you acted on it, the government could stop you.
Not so. The First Amendment and the full Western tradition holds that religious liberty is also (in the words of the amendment) free exercise, and religious believers and institutions must be permitted to worship and act in the public square as they see fit.
In bowing to the intense pressure challenging the constitutionality of their actions, the HHS has given more time to some employers before they are required to comply with the mandate. However, the HHS has not changed the fundamental problem with the mandate, which is that it forces employers and religious believers to act contrary to their religious beliefs.
But as the Hobby Lobby case shows, religious institutions are not the only entities that will be affected by the HHS mandate. Even companies that are run for-profit, and which do not offer social services like Catholic charities, have First Amendment rights to religious liberty, including free exercise. Companies like Hobby Lobby should be permitted to decide the kind of insurance coverage they wish to offer that is consistent with their beliefs, even as it can decide whether to close on Sundays or other religious holidays.
This second generation of cases focuses not only on the religious-discrimination aspect of the mandate, but the arbitrary bureaucratic discrimination the mandate represents. For the truth is: The mandate is not a blanket requirement, and it is being implemented unequally.
As the Hobby Lobby complaint alleges, “Millions of employers may escape the mandate because of the age of their plans or because of the number of people they employ.”
HHS itself may have already granted thousands of waivers to the policy, and more than 50 million Americans will be covered by grandfathered plans, and therefore not subject to the mandate, through 2014.
However, HHS has adamantly refused to grant blanket exemption based on religious belief, neither for social-service organizations such as charities or Catholic hospitals, and even less so for for-profit business like that of the Greens. This practice gives the lie to the statements by the government on the importance of forcing the mandate on religious institutions as a matter of national “health,” and, indeed, in another case regarding the mandate (involving Hercules Industries), one court has already found the government’s protestations on this point of little merit.
In some respects, the Hobby Lobby case is just as important as those earlier cases. More Americans, after all, work in private or family-owned companies like Hobby Lobby than in social-service organizations.
This case makes it clear that the HHS mandate will reach into every corner of our public life, making the religious liberty of all Americans less secure.
Gerald J. Russello is editor of The University Bookman.