By Rick Plasterer
An acute threat to religious freedom at the very practical level of day to day life was the topic of two presentations at the Family Research Council on Wednesday, February 20. Adele Keim, Legal Counsel for the Becket Fund for Religious Liberty spoke on the major threat to religious liberty entailed in the HHS contraceptive/abortifacient mandate, while Kellie Fiedorik, Litigation Counsel of the Alliance Defending Freedom, spoke on the severe threat to personal liberty of conscience caused by laws guaranteeing homosexuals rights to public accommodation.
Noting that the contraceptive/abortifacient mandate was “a major change in the law,” Keim observed that as late as 2007 the 8th federal circuit court said that an employer was entitled to exclude such coverage under federal law. While there were 26 states which mandated contraceptive/abortifacient coverage prior to the HHS mandate, all of them had a major escape clause which permitted employers to avoid sponsoring coverage for objectionable services through self-funded plans. By contrast, the Affordable Care Act (commonly called the “Obamacare” health reform law, which is the legal basis for the HHS mandate) has “no more escape clause that religious employers or religiously motivated employers can use to get around the objectionable mandate,” Keim said. That the Obama Administration is specifically attacking religious liberty seems clear from the fact that the regulation exempts 90 million Americans from its provisions in a non-religious “grandfather clause,” but no exemption has been granted to religious employers beyond a very narrow one for houses of worship. This has resulted in 14 lawsuits by religious employers claiming the right to exemption which are making their way through the federal court system.
Religiously motivated employers in private, for-profit businesses are the most exposed of the affected categories in the mandate (having no protection from its provisions at all), and Keim reviewed a high profile case with which she has been involved, that involving the Hobby Lobby arts and crafts retailer. This for-profit business is owned by the Green family, and each member of the family signs a pledge to run their business on Biblical principles. “Hobby Lobby closes on Sundays, they play Christian music in their store, they own an affiliate chain of Christian bookstores … [and] they take out ads every Christmas and Easter, in which they invite their readers to come to know Jesus Christ as their Lord and Savior.” She noted that in owner David Green’s 2005 book recounting the development of the business, one chapter is entitled “This Is Not a Secular Business.”
Against the Administration’s claim that corporate limitation of liability insulates employers from the moral consequences of their actions, Keim noted that this limitation would not protect an individual against claims of administrative malfeasance. Also, in another attempt to curtail religious freedom through redefinition, the Administration claims that liberty of conscience should apply only to the non-profit sector. For-profit employers lose their religious liberty at the beginning of the work day. But Keim noted that the Constitution does not distinguish between for-profit and non-profit bodies. Sustained public opposition to the Administration’s attack on religious freedom is crucially important at this time, Keim said. “This time around, it’s truly critical that religious believers, and indeed all people of good will, speak up again, and let HHS know that it’s not acceptable to draw lines around the First Amendment … religious business owners are as much entitled to conscience protections as churches and seminaries.”
The legal battle the government is waging against liberty of conscience with respect to contraception and abortion really is about the government’s attempt to mandate acceptance of the sexual revolution and repudiation of Judeo-Christian sexual morality. The outcome of the battle will have a great bearing on the other liberty of conscience battle, which is being waged against liberty of conscience with respect to homosexuality. Indeed, it may well be that the Obama Administration is waging the first battle, at least in part, to facilitate victory in the second. That battle, discussed by Kellie Fiedorik of the Alliance Defending Freedom, will be reviewed in a subsequent posting.
Comment by cleareyedtruthmeister on March 1, 2013 at 5:48 pm
Alexander Solzhenitsyn, in his famous Harvard address (1978?), warned of the perils of replacing historic Judeo-Christian moral teaching with the pseudo-morality of legality. His predictions are coming true before our very eyes. The battle between unseen powers continues to rage, but the new swords are statutes.
The modern Moral Police come under the guise of fairness and egalitarianism, pharisaically encoding their ideology in oblique legalisms that increasingly handcuff and marginalize religious traditionalists.
It is time to speak up…while there is still time.
Pingback by The Legal Attack on Religious Liberty in America – Part 2 | Juicy Ecumenism - The Institute on Religion & Democracy's Blog on March 3, 2013 at 8:00 am
[…] a previous blog post, I reviewed one of two important lines of attack on religious freedom in contemporary America […]
Comment by csalafia on March 4, 2013 at 2:03 pm
This is not a ‘religious liberty’ issue at all. To call it that is, well, laughable on its face.
You see, there’s this silly little law called the Civil Rights Act of 1964, and under Title VII (Sec 703) it says:
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
If an employee’s faith does not prohibit contraception, then the employer cannot discriminate against that employee’s access to contraception (benefits are classified as compensation) based on his/her religion.
In shorter words – An employer cannot force employees to abide by the tenets of the employer’s faith in any matter relating to employment. Period.
As long as Hobby Lobby, et. al., hire from and serve the general public, they have to abide by employment law under the ’64 CRA and EEOC.
On another note, I find it rather hypocritical of those who support businesses like Hobby Lobby in discriminating against their employees, yet say nothing…NOTHING… about Hobby Lobby filling their shelves with stuff made in China, most likely using child and other oppressive labor.
This issue isn’t about “Religious Liberty” at all. It’s about keeping women in their place by “slut shaming” them.
Comment by cleareyedtruthmeister on March 4, 2013 at 11:19 pm
There is absolutely nothing that Hobby Lobby is doing, or asking to do, that would violate the Civil Rights Act. If anything is laughable it’s that assertion.
Hobby Lobby is being forced, by the strong arm of Big Brother Government, to act contrary to their faith by paying for medical services that violate their moral conscience. It can be argued that those services are not necessarily “health care,” and no serious harm is done by not providing them. Indeed, it can actually be argued that more harm is done BY providing them.
Claiming that this is “about keeping women in their place by “slut shaming” them” is utter nonsense, but it does represent the prejudice and abject stupidity that has taken hold in many sectors of contemporary society.
Comment by rickplasterer on March 5, 2013 at 8:39 pm
Civil rights law does not have the effect of secularizing all organizations that serve the public, whether explicitly religious (as in schools or hospitals, or even churches which are open to the public and subject (regrettably) to the ADA). Hobby Lobby and other businesses owned by employers with religious convictions cannot legally discriminate in hiring, or have separate employment standards based on religion, but there is no reason why they cannot have rules based on the owner’s religious convictions, whether employees agree or not. No one is compelled to work there, for employees to object amounts to the employees imposing their views on the owners, not the other way around. And certainly it is the federal government which is imposing its views on religious business owners and religious non-profits, apparently in the Obama Administration’s effort (and that of the cultural left, through the Administration), to destroy the Christian subculture by requiring services easily obtained elsewhere that violate the Christian conscience. In this way the state will mandate acceptance of the social and sexual revolutions of the 1960s, which is its principle objective.
Rick Plasterer
Comment by csalafia on March 6, 2013 at 8:14 am
Rick,
Thanks for taking the time to respond. I feel you should be corrected on a couple of points.
1) Civil Rights law is not about ‘secularizing’ anything. It’s about equality of access and opportunity in public facilities and private businesses that hire from and serve the general public.
2) As a disabled veteran, I take great offense to your assertion that churches are “regrettably” subject to the ADA, as are, I’m sure, the numbers of churchgoers who are also disabled. If you’re talking about the ACA, then churches have always been, and always will be exempt.
3) In Employment Division vs Smith (1990) Justice Antonin Scalia wrote in the majority opinion that religious belief was not enough justification to be exempt from generally applicable laws. In the opinion he wrote: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
4) If an employer is discriminating against employees in compensation (which includes benefits like health insurance) based on the owner’s “religious convictions”, then they are in opposition to the law. Period. One wonders if you would feel the same if a non-evangelical business owner decided to impose their religious beliefs on their employees (say, JW’s or *gasp* Muslim).
5) The “no one is compelled to work there” argument is irrelevant. The law is the law is the law. Period.
6) If you think the “Christian subculture” is being destroyed, then I don’t know what to say. It’s not. 80%+ in this country self identify as Christian.
7) The argument about “mandating acceptance of the sexual and social revolutions of the 1960’s” is ridiculous. I guess you think the world would be better off if gays stayed in the closet, women stayed barefoot and pregnant at home, and minorities were prohibited from participating fully in American society.
Nothing in your article speaks of Christ, and instead speaks of a political ideology dressed in religious clothing. It’s this sort of rubbish that proves Sinclair Lewis correct.
Comment by cleareyedtruthmeister on March 6, 2013 at 10:57 pm
If you think Rick Plasterer’s commentary proves that he is in any way comparable to Elmer Gantry, alcoholic writer Sinclair Lewis’ gross mischarcterization of evangelical Christians, then you have clearly lost the capacity for rational thought.
Comment by rickplasterer on March 6, 2013 at 10:17 pm
csalafia,
I cannot tell if you understand the points I am making, but it seems clear that you favor a legal regime that denies liberty of conscience. We already have such a regime to some extent, but I do not believe that it exists to the extent you think it does. Antidiscrimination law prohibits discrimination in hiring, and prohibits treating different employees differently based on their religion, but it does not prohibit religiously based rules applying to all employees. You refer to compensation. An employer cannot pay Muslims half of what he pays Christians, but if free contraception and abortion inducing drugs count as compensation, all employees at objecting organizations are being denied this. For your argument to work, it is necessary to say an employee is being discriminated against if he or she is bound by an owner’s religiously based regulation he or she does not share, or perhaps strongly objects to. In that case, your argument does work, and my claim that civil rights law would secularize all organizations serving the public is inesacapable. No one could have a “Christian business,” or a “Jewsih business,” or a “Muslim business” because any one employee could claim the way the business is managed is religious discrimination.
Private organizations serving the public are not state actors, implementing state policy, although the Americans with Disabilities Act seems an attempt to move them in that direction. The philosophy behind ADA was to establish the propriety of the government entering the private world to change behavior, and, especially, attitudes. When this happens, reason and common sense go out the window. The only consideration becomes people accepting ideas the government deems correct. They may be good ideas or not, but it is not the function of a limited government in a free society to prescribe correct ideas for all of life, that is characteristic of a totalitarian government.
The same year (1990) that the ADA as passed, the Supreme Court issued the Smith decision that you refer to. This was a horrible decision that I believe in no small measure set the stage for the struggle for religious liberty that continues to this day. Like the nineteenth century Reynolds decision (which uphead the anti-polygamy laws, against the Mormon claim of religious freedom) both decisions said there is a constitutional right to believe what you want to, but no constitutional right to act on those beliefs. This despite the explicit wording of the First Amendment of the Constitution, guaranteeing “the free exercise” of religion. I am reminded of Jimmy Carter’s human rights campaign, to which a Soviet official responded that everyone in the Soviet Union was free to believe what they wanted, as long as they didn’t act on it. Increasingly, the western world is moving to something like the Soviet religious model, with religious charitable and educational organizations secularized, religious education prohibited, and religious freedom reduced to ceremonies in a house of worship. Notice, though, that as far as the Reynolds/Smith logic is concerned, not even that is constitutionally protected. Holy Communion could be prohibted as discriminatory (and this is not far-fetched; exclusivist standards for communion were recently challenged in The Netherlands).
Happily, the destructive effect of the Smith decision has been mitigated by the Religious Freedom Restoration Act of 1993. After some resistence by the Supreme Court, the court finally acknowledged that it is constitutional with respect to federal law, and the HHS mandate is based on fedral law. It says religious freedom may not be infringed unless there is a compelling state interest applied in the least restrictive way. That contraception and early abortion are necessary for health is dubious in the extreme; HHS relied on pro-abortion medical opinion to reach this conclusion.
Even if it should be defined as a compelling state interest, it is not a burden on religious liberty applied in the least restrictive way. Colntraception and abortion inducing drugs are readily and cheaply available, the government could simply pay for them if it thinks the need is compelling. There is one reason and one reason only religious organizations and proprietors are being legally required to pay, and that is to try to force them to violate their consciences. Thus behavior, and the Aministration hopes, attitudes and beliefs, will be changed to conform with ideas it deams correct.
I have written another article. But this is quite clearly a case of the Administration and its supporters are attacking religious ideas and their adherents that they don’t like with the force of the law. Have I not spoken of Christ? He said we must render our whole lives to God, for we bear his image. The state is not infallible. Its law can be immoral. Historically, when society and the state were more Christian, liberty of conscience was recognized in law. It was even recognized in World War II with respect to military service, although the country’s very life was at stake. It can certainly be recognized today with respect to unborn life and sexual morality. If not, then as I noted in my article, it is in the nature of religious obligation that the believer must obey it regardless of any other consideration and take the penalty. And as Kellie Fiedorik noted in the presentation I reviewed in my second article, there is one word for that – persecution.
Rick Plasterer
Comment by cleareyedtruthmeister on March 6, 2013 at 11:26 pm
Rick, you make some excellent points here. If the state gives liberty of conscience for conscientious objector status, even when the very survival of the state is at stake, then how in the world can the state disallow liberty of conscience when it comes to forcing employer coverage of contraception and abortion? It makes absolutely no sense, especially when you consider that these services could reasonably be construed to not even be health care. Of course, the holy grail of leftist politics since Roe v Wade has been abortion rights, so it’s becoming obvious that rabid political activism, along with a more-than-willing administration, has trumped both the Constitution and traditional Judeo-Christian moral understandings.
Despite the dubious Supreme Court decision of last summer, in which Obamacare was deemed Constitutional with regard to taxing authority, it’s still not clear to many legal scholars that compelling employers to provide health care to employees or pay a fine (a “tax” based on the questionable SCOTUS ruling), is, in fact, Constitutional. Certainly compelling employers to pay, against their conscience, for elective medical products and services which are inexpensive and readily available elsewhere cannot and should not be deemed, in any rational world, Constitutional.