That’s the vision advanced by the Obama administration in their broadened—but still much, much too narrow—exemption to the HHS mandate.
According to the administration’s factsheet, an employer will be exempt if it:
- opposes providing coverage for some or all of any contraceptive services required to be covered under Section 2713 of the PHS Act, on account of religious objections;
- is organized and operates as a nonprofit entity;
- holds itself out as a religious organization; and
- self-certifies that it meets these criteria and specifies the contraceptive services for which it objects to providing coverage.
This expansion of the mandate is notable mostly for what it still leaves out, namely any for-profit employer—like Hobby Lobby or Hercules Industries—that opposes contraceptive and abortifacient drugs and wishes to operate its business accordingly.
The Obama administration believes that conscientious objections to contraception should prevail in the non-profit sector, but not in for-profit corporations. Why? Do employees of non-profits need contraception less? Do the conscience claims of their leaders matter more? Why are tax-exempt organizations granted more rights than those which pay taxes?
Hoftra University’s Ronald J. Colombo spoke to First Things about the administration’s new regulations: “The distinction between non-profit and for-profit is a convenient rule of thumb, but when it comes to constitutional matters such as freedom of religion it’s not appropriate.”
“There are for-profit corporations that are much more religious than non-profits,” he said.
Colombo has called this view “the Naked Private Square,” writing, “Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.”
There are other possible issues with this proposed accommodation. Given the administration’s previous dissembling, religious bodies are going to skeptically regard assurances that contraceptives will be “seamlessly” provided to employees of non-profits in a way that does not impinge on the consciences of employers. Say, though, that the administration’s claims are made in good faith: Why not provide the same “seamless” accommodation even to for-profit corporations?
There have been certain stirrings in the courts to remove this arbitrary distinction between for-profit and non-profit, which is why it’s a shame to see the Obama administration try to further enshrine it in our law. To the extent that the business of America is business, religion must be recognized as making final, non-negotiable claims—in the market as much as anywhere else.
February 1st, 2013 | 1:26 pm
“To the extent that the business of America is business, religion must be recognized as making final, non-negotiable claims—in the market as much as anywhere else.”
Exactly right, and the “Naked Public Square” mentality is the reason why a discernible distinction between Christians and non-Christians in the public-square, especially in the realm of business and economics, is often absent. Though, we need to remember that while matters of conscience are important, a religiously-informed public-square presence–in the market and elsewhere–runs deeper. Non-Catholics and non-Christians, even irreligious persons, can conscientiously object to contraceptives and abortion. The truly Christian difference–a difference of presence in the academy, the arts, politics, the market, and elsewhere in the public-square–witnesses to the presence of Someone other who dwells among, with, and in (not outside as a checklist criterion) all human work. A sign of something Other, a Christian-informed public-square presence gives witness to a more human way of work–a way that is interested in life rather than gaining power.
As Christians, we are interested in things in a new way and we seek to publicly live and share this interest in our lay vocations. We cannot split Christ from ourselves and the split between Faith and life is, Pope Benedict XVI affirms, the great travail of our time. As we continue the necessary discourse concerning a total religious-freedom, we ought to remember that overcoming this split, not gaining power, is at stake.
February 1st, 2013 | 1:51 pm
This expansion of the mandate is notable mostly for what it still leaves out
This is a rather startling statement given all the dire predictions from some quarters about the consequences of the previous “accommodation.” Massive fines, civil disobedience, the shutdowns of Catholic hospitals and universities. The alleged mechanism for attacking the Catholic Church and driving it underground is now gone, and apparently that’s not even worth a sigh of relief!
From what I can tell, this new policy deals with all of the original complaints of the USCCB before Richard Doerflinger surprised quite a few people by talk of extending exemptions to anyone who objected, not just religious organizations.
The question now, it would appear, is whether for-profit corporations exercise religion, and it is far from obvious that they can in any meaningful sense.
February 1st, 2013 | 2:32 pm
“The question now, it would appear, is whether for-profit corporations exercise religion, and it is far from obvious that they can in any meaningful sense.”
And no doubt you will not object to them pressing their case against the Administration in court to determine so?
February 1st, 2013 | 2:40 pm
Over on the Religion Clause Blog, there is a post that notes:
Not being a lawyer, I am only speculating here, but it seems clear that most of the lawsuits brought by religious institutions are now moot. Even if, say, an archdiocese or a Catholic university or hospital supports Hobby Lobby, I believe they have no standing to sue over a regulation that does not affect them.
February 1st, 2013 | 3:04 pm
So – what practical limitations, if any, are there – or should there be – as to what a religious employer might enjoin or object to?
February 1st, 2013 | 3:15 pm
And no doubt you will not object to them pressing their case against the Administration in court to determine so?
Josh DeCuir,
Not only do I support their right. I supported the right of Notre Dame, the Archdiocese of New York, et al. to sue to override the previous accommodation. If you go back and read my previous messages on the topic, my position was that there were concerns that ought to be taken seriously, and that I trusted the courts to settle them fairly. For example, back in June I said,
I am sure that is not the only time I expressed the opinion that the “accommodation” so many were unhappy with would not be the final regulation.
I trust the courts to settle the issue of whether a for-profit company has First Amendment rights of free exercise of religion. At this stage, I think they don’t, and I think that is what the courts should decide. I am not sure how I feel about Employment Division v Smith overall, but certainly there is something to be said for Scalia’s view:
Do we really want to open the Pandora’s Box of every for-profit corporation being able to challenge government regulations it doesn’t like as an infringement on its free exercise of…
February 1st, 2013 | 4:30 pm
These new exemptions from the administration are just right. How can we feasibly extend them to the private for-business sector. Do you mean to say you support any business owner denying his employees health care based on a privately held belief system that may stem from his religious believes.
Therefore a Christian Scientist has the right to deny health care in a medical setting to all his employees because he believes God is the only healer? Or perhaps a particular religious order does not believe in immunizations or antibiotics? There are other religious sects that do not believe in the construct of mental illness-well I guess the employees of such folks won’t get psychiatric coverage for medication or therapy.
Or perhaps you’re saying that only employers who object to contraceptive coverage get this exemption? If they are from a different religion objecting to other things then no exemption for them. That seems a little arbitrary and discriminatory. So no I do not see how these kind of exemptions work in the business world, unless you all any employer cover or not cover at will.
February 1st, 2013 | 5:12 pm
The question now, it would appear, is whether for-profit corporations exercise religion, and it is far from obvious that they can in any meaningful sense.
Do you mean to say you support any business owner denying his employees health care based on a privately held belief system that may stem from his religious believes.
There are three questions:
1. Whether anything which makes use of the technologies or body of knowledge possessed by physicians, surgeons, and pharmacists qualifies as ‘medical care’.
2. Whether it is appropriate for the state to coerce an employer of any description to compensate an employee in any way but the timely payment of legal tender at the agreed upon rate.
3. And, quite apart from that, to answer why it is imperative to compel private employers to behave as if they endorsed a particular opinion given that their employees are not practically impaired from paying for their rubbers out of pocket.
The answers to these three questions are no, no, and ‘the joy of rubbing the christianists nose in it’.
February 1st, 2013 | 5:57 pm
Exactly! There’s no reason a church in the eyes of the law cannot be a place of business – or a business cannot be a church. Why the arbitrary distinctions?
I largely share the view being articulated by Schmitz, and by Scalia: Government should not discriminate on the basis of religion, and government should not accord different religious deference to organizations based on whether the organization is for-profit or not-for-profit.
Hobby Lobby espouses a world view. So did Leman Bros. Government should be will to accord each organization the same treatment before law. Worship of God or worship of mammon, the law should not discriminate. To do otherwise would be to engage in viewpoint discrimination, and specifically, religions discrimination.
And we should let any employer cover or not cover at will. And, indeed, the law provides for precisely that option for all employers. I see no justification for discriminating between religious, not-for-profit employers and other employers.
February 2nd, 2013 | 5:53 am
“This is a rather startling statement given all the dire predictions… …the alleged mechanism for attacking the Catholic Church and driving it underground is now gone, and apparently that’s not even worth a sigh of relief!”
I must wholly disagree. This proposal has been criticized rigorously precisely because the real problem remains: Government wishes to control which beliefs and values we act upon in our daily lives in a dangerous manner.
I notice that it took about a year before the Administration would even budge this much. They aren’t giving up on their fight. Even if we agree to this “compromise”, we’ll be back at it again within 6 months or a year about SOMETHING.
We shouldn’t be interested in any sigh of relief until these mandates have been summarily scrapped and the government has been forced to mind its own business.
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