Here’s the federal district judge’s ruling in Hobby Lobby’s suit against the HHS mandate. Non-religious corporations don’t have religious liberty under the First Amendment and aren’t persons protected by the Religious Freedom Restoration Act. The Greens–owners of the privately held company–certainly are persons for RFRA purposes, but their religious liberty isn’t “substantially” burdened by the requirement that the company they own pay for drugs and procedures to which they are conscientiously opposed. As different judges have already come to different conclusions in substantially similar cases, this is not the end of the road for this very popular (at least in my neck of the woods) chain.
To my mind, the best defense of religious liberty is for government not to make laws that so directly violate the consciences of so many people. A government responsive to a citizenry that cared deeply about religious liberty would think twice before imposing such requirements. From what I can tell, the Obama Administration–by insisting upon the protection of rights which a corporation’s failure to subsidize doesn’t violate–is actively working to muddy the waters, creating a conflict between two rights claims when there need not be any. The practical consequence is to undermine people’s attachment to religious liberty. In other words, “objectively” (as my Marxist grad school colleagues used to say) the Obama Administration is opposed to religious liberty.
Would that it were not so.
November 20th, 2012 | 5:39 pm
Western religions always strengthen when oppressed by the law (early Christianity & post-Shoah Judaism) and always falter when they attempt to coerce neighbors who happen to be nonmembers via the law (see the Salem witch trials).
He who has faith fears a deity, not a law. The only exception to this rule are law professors.
November 20th, 2012 | 5:58 pm
In other words, “objectively” (as my Marxist grad school colleagues used to say) the Obama Administration is opposed to religious liberty.
Would that it were not so.
It is not so.
The most you can say, if you wish to be fair, is that the Obama administrations—recognizing that religious liberty is not absolute—feels that the common good is better served, in this particular case, by a contraceptive mandate with narrower exemptions for religious objectors than the religious objectors want. That does not make Obama or his administration any more “opposed to religious liberty” than Justice Scalia was in his opinion in Employment Division v Smith, or in any other case where the government decides government authority overrides religious objections.
There have been two significant disagreements over religious liberty matters with the Obama administration that I can think of—Hosanna-Tabor and the HHS mandate. The Supreme Court decided the Hosanna-Tabor case unanimously against the administration, with Obama’s two appointees voting against the administration. (One might argue that if the Obama administration was truly opposed to religious liberty, it would have not put on the bench two justices in favor of religious liberty who will serve long after Obama is out of office.) Whichever way the courts decide the HHS mandate, that will amount to two significant disagreements (and a few minor ones).
There are administrations/governments in the world that “do not believe in religious liberty.” The Obama administration and the United States are far, far from being among them.
I know people who wish Obama had never been elected president like to see things in black and white, or in terms of good and evil. But Obama isn’t “against religious liberty.” A certain element of the religious community strongly disagree with Obama over the contraceptive mandate, and he disagrees with them. If he prevails, it does not mean the end of religious liberty in the United States. The United States will not become anything like Iran or North Korea or Egypt or Pakistan or any other country without religious liberty, nor does Obama intend for any such thing to happen.
November 20th, 2012 | 6:14 pm
I would be interested to know whether Hobby Lobby’s employee health insurance already included the controversial “morning after pill” in their plan prior to the HHS mandate discussion. This was the case for Wheaton College, yet the college is still pursuing legal exemption.
What procedures and drugs are required by the HHS mandate that are being conscientiously opposed? are these procedures and drugs that this company has historically not covered in their employee health insurance plan? I think it’s an important to consider because if true (and Hobby Lobby previously did cover Plan B, etc) it does paint the company as reacting to what used to be a non-issue for them…and it would seem that their religious liberty isn’t “substantially” being burdened.
November 20th, 2012 | 7:16 pm
I would be interested to know whether Hobby Lobby’s employee health insurance already included the controversial “morning after pill” in their plan prior to the HHS mandate discussion.
Tia Flowers Monkemeier
It did not. From the court’s ruling:
November 20th, 2012 | 8:04 pm
So, David, when Catholic schools and hospitals start closing, we can all rest easy, since Obama didn’t “intend for any such thing to happen.” Right?
November 20th, 2012 | 8:12 pm
Hobby Lobby is bad news, no doubt. But it is only a ruling on a preliminary injunction.
More importantly, there is also good news. The court in Tyndale reached the exact opposite conclusion. It granted a preliminary injunction against enforement of the HHS mandate, i.e., finding in favor of the plaintiff (a private company) preliminarily.
http://mirrorofjustice.blogs.com/mirrorofjustice/2012/11/court-grants-injunction-to-tyndale-in-challenge-to-hhs-mandate.html
From what I can tell, there is developing a division among the district courts on this issue. Some are granting preliminary injunctions to private companies. Some are not.
The Hobby Lobby court, in my opinion, was clearly wrong to dismiss the statutory definition of “person,” which includes a corporation or business entity.
November 21st, 2012 | 1:07 am
So, David, when Catholic schools and hospitals start closing, we can all rest easy, since Obama didn’t “intend for any such thing to happen.” Right?
Patrick,
Even if the contraceptive mandate is upheld by the courts, there will be no reason for Catholic schools or hospitals to close. They can drop insurance coverage for their employees, pay the $2000 fine per employee, and come out ahead. It costs considerably more than $2000 to insure and employee.
But you seem to be assuming the mandate will survive all the court challenges. Why?
November 21st, 2012 | 6:40 am
Yes, the Tyndale case tends in the other direction. I’ll try to make the time to read the decision and offer some comments, perhaps later today.
As for the Obama Administration’s “balancing” of subsidized access to contraception, abortifacients, and sterilization services, on the one hand, and religious liberty, on the other, I agree that religious liberty isn’t absolute, but (first of all) don’t see how the HHS mandate seriously passes the RFRA test (itself just a restoration of the status quo ante Smith). More important from my point of view is the way in which the Obama Administration needlessly inflates the status of those health services as, in effect, rights. Their promotion–especially in explicit opposition to the religious liberty claims on the other side–is a demotion of the latter claims. I recognize that we’re a long way from the worst of all possible worlds, but almost everywhere it has had the opportunity, the Obama Administration has sided with those in America who would (in the name of their causes) restrict the religious liberty of their conscientious opponents.
November 21st, 2012 | 8:47 am
We collectively needed to exorcise this demon, and failed to do so–again because my fellow Catholics did not do their duty. (Many other groups failed to do theirs as well.)
Now we’re in for some radical civil disobedience, I’m sorry to say. But we must stand on both the moral principles and the civic principles involved, lest we lose freedom of religion outright.
November 21st, 2012 | 9:05 am
What the discussion misses is that the contraceptive mandate is entirely gratuitous. With extremely rare exceptions, contraception is not healthcare. Likewise, except where the life of the mother is truly at stake, abortion is not healthcare. Moreover, as the whole Sandra Fluke kerfluffle showed, the actual cost of contraceptives for women is so low that a claim that women can’t afford them (particularly if they can afford to attend G’town Law) is overwrought.
The administration’s insistence that employers cover things that are not healthcare under the guise that they are part of healthcare is mere pandering to the increasingly powerful Planned Parenthood / abortion provider caucus of the Democratic Party, and a poke in the eye to “bitter clingers.” If it were essential that lifesaving drugs and procedures be covered by all healthcare plans and be provided with absolutely no copay by the insured employee, why aren’t medications for high blood pressure, high cholesterol, diabetes and any number of other chronic, potentially debilitating or deadly conditions, also mandated?
Perhaps the Obama administration is not motivated by anti-religious sentiments. But if it is not, then it is manifestly incompetent (and no, I do not use that term as a racist “code” word) in imposing such an unnecessary mandate that merely serves to inflame tensions in the culture wars without advancing real healthcare.
November 21st, 2012 | 9:26 am
Now we’re in for some radical civil disobedience, I’m sorry to say.
Joe DeVet,
And what form would that civil disobedience take? Providing insurance without coverage of contraception? As I understand civil disobedience, it involves accepting the legal penalties for disobeying the law. Would dropping insurance coverage and paying the $2000-per-employee tax constitute civil disobedience? Or does civil disobedience require religious organizations to provide coverage without contraception and dare the government to go after them?
November 21st, 2012 | 9:30 am
@Christopher Landrum:
Religion and religiosity strengthen and increase when suppressed.
@David Nikol:
I agree that the Administration isn’t against religious liberty. It’s really utilitarian with a lower weighting on religious liberty.
I think after the midterm elections, we will see them back-off a bit. And maybe this (http://thehill.com/blogs/floor-action/house/268697-bipartisan-group-proposes-expanded-exemption-to-health-insurance-mandate) will pass.
November 21st, 2012 | 10:39 am
@ David Nickol 11/20 5:58
“It is not so.
“The most you can say, if you wish to be fair, is that the Obama administrations—recognizing that religious liberty is not absolute—feels that the common good is better served, in this particular case, by a contraceptive mandate with narrower exemptions for religious objectors than the religious objectors want. ”
I have accepted the fact you will post endless apologia, often inconsistent, in favor of state action, no matter how indefensible the machinations of the state.
But try to imagine that some people think that if there’s a “common good” (there isn’t, but that’s another argument, one that requires a some knowledge of economics and concepts like “multiple peaked preferences” ) that it is not something to be determined by a small group of bureaucrats issuing edicts that are in direct contradiction to the Constitution, pre-existing statutory law and the promises of the chief executive.
While religious liberty is not “absolute”, your interpretion of it’s constraints allows the the transient officials of the state to impose an affirmative obligation on someone without exception. If this reasoning holds, conscientious objectors can be conscripted into the infantry, because there is no constraint on state edict, so long as it serves the “common good”.
Yet, in your post of 11/21 @ 1:07, you write the following:
“But you seem to be assuming the mandate will survive all the court challenges. Why?”
Forget for a minute that the Courts often take an expansive view of state power, so long as the legislative and executive branch conceal their naughty parts with the fig leaf of exigency.
For this I give you the following splendid exercises in judicial reasoning:
Dred Scott, Buck v. Bell, Korematsu v. United States, Roe v. Wade and Kelo v. New London.
However, let’s assume the courts have a Miranda moment (and we can assume this will go to the SCOTUS) and actually act as the guardians of our liberties against the leviathan.
Are you suggesting that we should be content that with the issuance of egulation, that is frivolous in that it should be expected not to survive litigation?
November 21st, 2012 | 11:16 am
I have accepted the fact you will post endless apologia, often inconsistent, in favor of state action, no matter how indefensible the machinations of the state.
Adam Baum,
Nonsense. I have never given, or implied, a blanket defense or approval of government action.
Are you saying you are not willing to accept American democracy or the legitimacy of our government, including the courts? What will you replace it with?
November 21st, 2012 | 1:34 pm
@ Adam:
Give it up, dude. You’ve fought the good fight, but David is the jello you’ll never get nailed to the wall. You can’t argue with our resident master of the secretly imported and unexamined premise. Do something useful and enjoy your turkey instead.
(Really David, you can’t think of a single meaningful act of civil disobedience one could engage in? Refusal to pay one’s taxes? Public refusal of ministers to perform state-sanctioned weddings? Oh that’s right, I forgot, maintenance of the system is apparently now its own justification, if your comments to an article a few days ago are any indication).
Joe: How do the FT editorial staff currently define “contribute”, as in: “We welcome comments that contribute to the discussion of an issue raised in this article.” I reiterate my suggestion from a year or so ago, that all posters ought to be required to provide a statement of the criteria under which which they would consider their views to have been falsified. As it stands, the usual run of comments at this blog only illustrate the various arguments by Alasdair MacIntyre and Phillip Rieff, that modern culture provides little in the way of context for reasoned public debate about moral questions. As Marx mentioned in another context, “the point is to change it”, not to keep illustrating the problem.
November 21st, 2012 | 2:27 pm
Despite certain individuals apologies anyone following Obama’s regime can see his outright hostility to the Judeo-Christian heritage of this country. Joseph Knippenbergs analysis is spot on. Obama and his crew seek to discredit traditional authority, belief, and understanding within a properly ordered society. Thank God for corporations like Hobby Lobby who are spending their hard earned monies against the leviathan. I know one store that I will shop this Christmas. I would encourage you faithful religious readers out there who don’t have time to respond to the gadflies, to do something useful such as to put your money into a company that defends the good. As Knippenberg stated Obama and his crew seek to the muddy the waters and thus change the framework of the argument. On almost every issue this administration takes the opposite stance against traditional notions of morality. Hobby Lobby for this administration is just another opportunity to silence oppostion.
November 21st, 2012 | 3:04 pm
Really David, you can’t think of a single meaningful act of civil disobedience one could engage in? Refusal to pay one’s taxes? Public refusal of ministers to perform state-sanctioned weddings?
arty,
I can think of many acts of civil disobedience, but my impression of the Catholic tradition leads me to understand that many acts that some might consider civil disobedience would be out of the question. For example, I just don’t see the Catholic Church sanctioning such things as occupying government buildings or blocking traffic in Washington, D.C. I also don’t see the Catholic Church sanctioning the nonpayment of legitimate taxes.
I would think for Catholics that civil disobedience would be the refusal to obey unjust laws, not to engage in lawbreaking for the sake of calling attention to various demands. I am not sure what a “state-sanctioned wedding” is, but since nobody is legally forcing Catholic priests to perform weddings, I can’t see how it could be an act of civil disobedience to decline to perform a marriage.
When someone says, “Now we’re in for some radical civil disobedience, I’m sorry to say,” it is a perfectly legitimate question to ask, “Well, what form will it take?”
November 23rd, 2012 | 11:31 am
David Nickol
When one considers what acts of resistance against heretical rulers were sanctioned by moral theologians of the first rank, particularly the Jesuits of the Salamanca school, like Lessius, Molina, Mariana, and Suarez, up to and including tyrannicide, I do not imagine there is much, in the way of “civil disobedience” that the Church would rule out.
Jacques Clément, the Dominican lay-brother, who infiltrated the entourage of Henry III and assassinated him, at the cost of his own life, was praised by Pope Sixtus V and his canonization considered.
November 25th, 2012 | 12:18 pm
Well, that’s clear: If we don’t get our way, assassination and violence are justified.
I am glad you clarified that for David.
November 25th, 2012 | 7:14 pm
When all is said and done,and put in my simplistic context, I must come to the conclusion that Obama will eventually accomplish his objectives: radically remaking America in his own image(?). Not just in the religious liberty aspect under current discussion, but in many other aspects as well. I hardly recognize the America I immigrated to in 1950. But that is not altogether as a result of Obama’s policies either.
November 26th, 2012 | 1:54 pm
Obviously, Joe McFaul, there’s nothing more weighty at issue here than “getting our way.”
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