Earlier this week I wrote in the Weekly Standard about the decision in Newland v. Sibelius, granting a preliminary injunction against enforcement of the Free Birth Control Rule against a family and its business.  After reading the decision, I decided that it might be worthwhile reading the Department of Justice’s legal brief. Yikes!  More of Obama’s attempt to push the robust right to freedom of religion into a tiny corner of freedom of worship.

So, I decided to use my bi-weekly On the Square column at First Things to describe the audacious extent of the government’s argument—which, in essence, is that if you seek a profit you loose your free exercise rights with regard to your business activities.  From, “Obama Looks to Strip Entrepreneurs of Religious Liberty:”

 The court deferred a hugely important issue until trial as a matter “of first impression;” whether the Newlands lost their RFRA protections when they decided to adopt a corporate business platform (Hercules Industries). Specifically, the government’s “Memorandum in Support of Motion to Dismiss” argues:

Hercules Industries is a for-profit, secular employer, and a secular entity by definition does not practice religion . . .It is well established that a corporation and its owners are wholly separate entities and the Court should not permit the Newlands to eliminate that legal separation to impose their personal religious beliefs on the corporate entity or its employees . . .The Newlands should not be allowed to impose their religious beliefs on the corporation’s group health plan or its 265 employees.

Impose? They own Hercules. They are the company’s sole stockholders and serve as its corporate officers. They pay for their employees’ covered health expenses out of their own pockets. Surely, operating as a close corporation does not strip American citizens of their religious liberties in the business context.

But it isn’t just incorporating:
But a closer look at the government’s brief shows that it isn’t the act of incorporating that supposedly strips business owners of religious liberties in the marketplace, but simply seeking profit. “By definition, a secular employer does not engage in any ‘exercise of religion,’” the brief states boldly. Any burden on religion arises out of the “choice to enter into commercial activity.” In other words, business is a religion free zone. Once we enter the stream of commerce—even, it would seem, as a sole proprietor—we leave our religious liberties on the dock.

I get into the oft repeated nonsense that by refusing to pay for contraception, the business is somehow preventing its employees from using it:
That’s topsy-turvy. Refuse-to-pay is not synonymous with prevent-from-obtaining. Medicaid doesn’t cover abortion, for example, but that doesn’t mean the government is “controlling” the reproductive choices (in the common lexicon) of Medicaid recipients. Otherwise, Medicaid rules would violate Roe v Wade. Similarly, the Newlands are not preventing their female workers from using birth control simply because they won’t pay for it.

I note that it is actually the Obama Administration doing the imposing:
Ironically, the Obama Administration is the party in the lawsuit attempting to impose its feminist ideology on others. Forcing businesses to provide free contraception is essential, the DOJ argues, because controlling reproduction places working women “on an equal playing field with men” by “removing barriers to economic advancement and political and social integration.” Not only that, but requiring employers to provide free contraception assures “equal access . . . to goods, privileges, and advantages” that otherwise are denied due to the “unique health care burdens and responsibilities” borne by women.

Construing potential pregnancy as a “burden” is as much a dogma of contemporary secularism as the purported moral wrongness of artificial birth control is Catholic.

Then, I summarize the government’s argument:
The government claims that:

1) Seeking profit is a wholly secularist pursuit;
2) Hence, once we go into business, we lose our religious freedoms in the context of those activities;
3) Meaning that all who engage in such secular undertakings must accede to the precepts of secular ideology;
4) Which the government establishes through the passage of laws and promulgation of regulations.

And that is how the Obama Administration is using the ACA to further its ideological goal of enervating freedom of religion into a hollow freedom of worship—in which people are allowed to believe and worship as they choose, but not practice their faiths in the public square contrary to worldly imperatives.

If Obama prevails, it will be a body blow to traditional American liberty.

Articles by Wesley J. Smith

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