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Do entrepreneurs sacrifice their religious liberties merely by seeking a profit? That question would have stunned our Founding Fathers, most of whom were businessmen as well as statesmen. George Washington owned a large for-profit farm. So did James Madison. John Adams and Alexander Hamilton ran successful law practices. Benjamin Franklin was a printer and an inventor. Having secured freedom of religion for themselves and their posterity, these men of liberty would be astounded that the government they established asserted the legal authority to force business owners to violate their religious beliefs in the operation of their enterprises.

Wesley J. Smith Yet, that is exactly the power claimed by the Obama Administration under the “free birth control rule” promulgated under the Affordable Care Act. This audacious agenda is promoted in a legal brief filed by the Department of Justice in Newland v. Sebelius , in which a Catholic family (the Newland siblings) seek court protection against being forced by the government to provide free contraception and sterilization surgeries to their female employees.

The case primarily hinges on the applicability of the Religious Freedom Restoration Act, passed in 1993, which requires that the government prove it has a “compelling state interest” when legally forcing individuals to violate their faith tenets. Perhaps because their business is self-insured, the court issued a preliminary injunction pending trial, so at least for now, the Newlands are safe.

But that doesn’t settle the case. 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.

Or maybe it does. Some would argue that abiding by secular rules is the price paid for taking advantage of secular laws that accord entrepreneurs the advantages of conducting business through a juridical entity.

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.

That’s only part of the Obama secularization agenda found in their legal brief. In another radical move, the DOJ argues that by standing up for their own religious liberties, the Newlands are actually forcing their workers to follow the precepts of the Catholic faith:

The owners of Hercules Industries have no right to control the choices of their company’s employees, many of whom may not share the Newland’s religious beliefs.

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.

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. Indeed, if the ACA is ever amended to allow HHS to require that employers provide free abortion, the government would make identical arguments as in Newman . And don’t think the Obama Administration wouldn’t do just that were they given the legal authority. Should this next logical step ever be taken, it wouldn’t just be (primarily) Catholics oppressed by the profit = secularization meme.

To summarize, 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. Should the Administration ultimately prevail in the Newland case”and in imposing the free birth control rule on explicitly objecting religious institutions (as I have discussed here previously)”naked secularism will reign triumphant to the significant detriment of traditional American liberty.

Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism, and consults for the Patients Rights Council and the Center for Bioethics and Culture.




Wesley J. Smith, Freedom of Worship’s Assault on Freedom of Religion

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