Yes, Religious Liberty is Threatened in America

Oral arguments begin today at the Supreme Court in Sebelius v. Hobby Lobby, a case precipitated by the HHS Mandate, under which corporations must provide abortifacient and contraceptive coverage to employees. This requirement, the most controversial in a host of controversial provisions under Obamacare, has elicited a host of lawsuits from a variety of religious organizations, both for-profits and non-profits. Hobby Lobby could face fines of up to $500 million a year if the mandate goes forward.

Hobby Lobby, represented by The Becket Fund, argues for an exemption to the HHS Mandate on the basis of the First Amendment’s guarantee of free exercise of religion, and on the broadly bipartisan, Clinton-era Religious Freedom Restoration Act, which requires that “governments should not substantially burden religious exercise without compelling justification” and provides a “defense to persons whose religious exercise is substantially burdened by government.” Congress passed this law almost unanimously, and President Clinton signed it, in 1993.

Others, including Baylor president Ken Starr, have done an excellent job laying out the legal implications of the case. I’ll simply add here that I am struck by the Obama administration’s bold, relentless challenges to established understandings of religious liberty. Sarah Pulliam Bailey in 2012 compiled a stunning timeline of the administration’s first term moves with religious liberty implications, and the list would be much longer now. Throw in state-level cases of businesses being required to offer services to gay weddings, and there’s reason for alarm indeed.

Without questioning its significance, I believe that Hobby Lobby was actually not the most disturbing assault on religious liberty under the Obama administration. That came in the 2012 Hosanna-Tabor Supreme Court case, which I examined at length in Liberty magazine. Traditional religious liberty law has understood that churches and other religious organizations were exempt from discrimination lawsuits by “ministerial” employees, because the government is not competent to determine standards of employment for such organizations. But the Obama Justice Department argued in Hosanna-Tabor that the court should reject the ministerial exception, or apply it only to employees whose duties were “exclusively religious.” (One wonders, are a pastor’s duties 100% religious? What if he writes checks or mows the lawn? But I digress.) This shocking attack on the ministerial exception went far beyond even the amicus briefs filed by the ACLU and other secularist organizations.

The good news – perhaps a heartening precedent for Hobby Lobby – is that the Supreme Court utterly repudiated the Obama administration’s position in its 9-0 Hosanna-Tabor decision. Even President Obama’s own appointees did not buy the administration’s argument.

But the president’s boldness, seen most obviously in these two Supreme Court cases, does give us real reasons to worry. If the administration had its way, then the national government would wield a great deal more power over the hiring practices of faith-based organizations, and a great deal more authority to force religious dissenters to comply with federal policy. Aggressive new claims of government power over religious freedom – or over any basic freedom – are dangerous. Legislators already beat back such claims in the RFRA, as did the Supreme Court in Hosanna-Tabor. I pray that the court will do the same in Hobby Lobby’s case.

  • JPeron

    Religious freedom seems to be defined as giving religious people rights that other people don’t have who are not religious. Someone claiming a secular reason for taking the same position as Hobby Lobby would NOT be exempted. Their beliefs don’t count. But, if someone claims a mystical reason for it, then suddenly they have rights the rest of don’t have. Freedom is freedom for everyone, not privileges for a certain group.

    • Daniel Merriman

      I guess you think the Amish should be paying Social Security taxes?

      • RustbeltRick

        The Amish are a religious community. The Hobby Lobby is a retailer. Please tell me you see the difference.

        • Daniel Merriman

          Amish businesses (there are lots of them) are privately owned, just like Hobby Lobby, not community enterprises.

      • Alyxander M Folmer

        Yes, in fact, I do. American citizens on American land, they can pay their taxes just like the rest of us. For that matter, so can churches.

      • Asemodeus

        They already do. USA vs. Lee.

        In that ruling the court correctly pointed out that you cannot exempt yourself from laws that apply to everyone equally. Paying SS taxes applies to everyone, so a Amish business owner cannot be exempted.

        • Daniel Merriman

          Sorry, but the statement I made above is correct. Congress amended the Social Security Act in 1965 to provide this exemption. An Amish business owner would only pay Social Security taxes on any non-Amish employees he had. I am a tax attorney, if you want to continue this debate I will be happy to do so. First, though, you will need to provide a complete citation (volume, reporter and page) to the case you cited.

          • Asemodeus

            ” An Amish business owner would only pay Social Security taxes on any non-Amish employees he had.”

            So you just contradicted your previous post.

            Good job.

          • Daniel Merriman

            No contradiction to anything I said. Please re read the thread.

          • Asemodeus

            So paying ss taxes is not paying ss taxes. Interesting aegument you have there.

          • Daniel Merriman

            Are you being intentionally dense? If I am Amish, I do not pay social security taxes on my wages or income from self employment. If I am Amish and employed by a non-Amish employer, that employer does not pay the employer share of SS taxes and my wages are not subject to SS taxes. If I am Amish and employ someone else who is Amish, I don’t pay the employer’s share of SS taxes and my Amish employee does not pay SS taxes. Is that clear enough for you? The only exception was as stated. The exception does not swallow the rule.

          • Asemodeus

            I am being dense because you refuse to admit fault when you were clearly wrong about your first blanket statement that the amish do not pay ss taxes.

          • Daniel Merriman

            I pay SS taxes. I have an account with my name on it maintained by the SS Administration that records my earnings and contributions. No Amish Anerican does. Why? The Amish don’t pay SS taxes. No fault here. Have a nice evening.

          • Asemodeus

            http://supreme.justia.com/cases/federal/us/455/252/case.html

            (c) It would be difficult to accommodate the
            social security system with myriad exceptions flowing from a wide
            variety of religious beliefs such as the Amish. Wisconsin v. Yoder, 406 U. S. 205,
            distinguished. There is no principled way, for purposes of this case,
            to distinguish between general taxes and those imposed under the Social
            Security Act. The tax system could not function if denominations were
            allowed to challenge it because tax payments were spent in a manner that
            violates their religious belief. Because the broad public interest in
            maintaining a sound tax system is of such a high order, religious belief
            in conflict with the payment of taxes affords no basis for resisting
            the tax. Pp. 455 U. S. 259-260.

      • WillBell

        And you probably think Christian Science businesses shouldn’t have to offer any healthcare at all?

  • Dorfl

    Since ‘religious liberty’ apparently includes “The right to our own facts, unconstrained by external reality” I don’t see how it could not be threatened in a society that tries to base laws and policies on facts. Plan B is not an abortifacient:

    http://www.figo.org/files/figo-corp/MOA_FINAL_2011_ENG.pdf

    • Daniel Merriman

      Then you would have no problem with a holding that says Hobby Lobby as a for profit business corporation has standing under REFRA and it should be allowed to not cover birth control methods that could be abortifacients, leaving it up to the lower courts to determine that factual question?

      • Dorfl

        Since I’m not American, I don’t really have an opinion on how you should solve this issue. That’s up to you.

        What’s not up to you is whether plan B causes abortions. It doesn’t.

        • Daniel Merriman

          If you are correct, then that is the kind of issue our lower courts are well equipped to resolve. If the facts are as clear as you say, there wouldn’t even be a full trial; in all likelihood, what we call a motion for summary judgement would be granted and Hobby Lobby would lose. Of course, if others disagreed with the factual assertions that you and the advocacy organizations whose assertions you cite as factually indisputable do in fact have scientific evidence to the contrary, they would be entitled to bring it up and the Court could decide. Disputes like this get resolved by our Courts on a daily basis. However, the governments position in Hobby Lobby is that they aren’t even allowed to raise the issue. And, Plan B is not the only method at issue.

    • Antiphon411

      “…a society that tries to base laws and policies on facts…”

      Would you say so? It has been my understanding that we live in a society that bases laws and facts on policies.

  • Allison

    Thomas,
    I agree…the response by the government during the Hosanna-Tabor case was alarming. I would say though that ministers (all of His people) are carrying out religious duties in all that we do…even taking out the trash, eating a meal, etc… is to be done for the glory of God. I think Jesus was honoring His Father when He built something with wood. All He did honored Him.

    I wonder if it would be helpful to completely remove for-profit and non-profit statuses. It’s about the people…and all people are believers in something/O/one. If even themselves.

    What an eventful time in history and what a privilege it is to help teach and train the next generations (along with the others) to think like Him. Thankful for people and professors like you who are doing just that.

    Thomas,
    I agree…the response by the government during the Hosanna-Tabor case was alarming. I would say though that ministers (all of His people) are carrying out religious duties in all that we do…even taking out the trash, eating a meal, etc… is to be done for the glory of God. I think Jesus was honoring His Father when He built something with wood. All He did honored Him.

    I wonder if it would be helpful to completely remove for-profit and non-profit statuses. It’s about the people…and all people are believers in something/O/one. If even themselves.

    What an eventful time in history and what a privilege it is to help teach and train the next generations (along with the others) to think like Him. Thankful for people and professors like you who are doing just that.

  • Antiphon411

    The concept of religious liberty has always been an error from a Christian perspective. It is a Liberal idea with its roots in religious indifferentism. For the better part of two centuries, when USA population was mostly Christian (even by a deficient definition), the true nature of its Liberal foundation could be mitigated. Now that the Christian orientation of USA is only vestigial, Liberalism is revealed in all its (in)glory.

    If the Obama administration is really going to take on the Church, then I think that this is a good development. I don’t know whether the Tree of Liberty really needs to be watered with blood, but the Tree of Faith certainly thirsts for the blood of martyrs. Bring on the lions!

    • RustbeltRick

      Keep holding your breath if you want the Obama administration to take on the Church. They won’t. They will take a for-profit big box chain of craft stores like Hobby Lobby to Court, however.

      • Antiphon411

        Oh, I’m not holding my breath. I don’t foresee Obama taking on the Church because I don’t really foresee the Church standing up to him–especially with Pope Francis at the helm. But, then, hope is one of the theological virtues, innit?

    • Alyxander M Folmer

      We live in a nation founded by deists and secularists. The first treaty that the United States ever signed explicitly stated “The Government of the United States of America is not, in any sense, founded on the Christian religion”
      America has always contained a lot of Christians, but it has NEVER been a “Christian Nation”.
      There were thousands of religions before yours, and there will be thousands that come after, and your faith is no more or less valuable than any of theirs. Welcome to the nation of Equality.

      • Antiphon411

        You and I are in complete agreement about the non-Christianity of USA. I said the population was largely Christian; the nation itself has always been secular or Liberal. So long as the population was Christian, it was difficult for most to discern that the nation itself in its institutions was not–in fact, quite the contrary.

  • billwald

    1. The Jews sacrificed beef and sheep. Most of the cooked meat was eaten by the priests and/or customers who paid for the livestock.
    2. In the first century the Temple priests raised livestock and sold it to the customers (worshippers).
    3. The IRS permits (I read someplace) Rastafarians to deduct the cost of sacrificial chickens.
    4. Protestant Christians teach “the priesthood of all believers.”
    5. Thus if a Protestant Denomination should raise livestock, sell the animals to parishioners, butcher the livestock on church property in a ritual, and return the cut and wrapped meat to the purchasers, the entire process should be tax exempt.

  • Psycho Gecko

    Yes, it’s sad that Hobby Lobby threatens the religious liberty of its employees, and every other employer or employee in similarly affected corporations, whose sect of Christianity is compatible with birth control.

    Let’s hope that Hobby Lobby’s oppressive policies and attempt to have special rights are done away with so that this nation can once again try its best to stand by the creed of “One nation, indivisible, with liberty and justice for all,” as the Pledge of Allegiance was written.

  • RFP Berkley Center

    Thanks for this piece. We’re also following the Hobby Lobby case on our blog at http://berkleycenter.georgetown.edu/rfp/blog

  • Mike 666

    Hobby Lobby has the right to religion? Then tell me where the soul is in a corporation. Tell me where the corporation, the offices etc, go to worship and what rituals they perform. It looks like the Execs want to force their religion on the lower employees. Doesn’t surprise me that someone on the right would support Hobby Lobby. They always look at the rich as gods and the poor as trashy scum that is not deserving of life. And they say to love thy neighbor and that Jesus cares about the poor. Yeah right.

    So if hobby lobby doesn’t like contraceptives then I’m sure they will want to pay for the kids and for the abortions then.

    • WillBell

      If Hobby Lobby is a ‘christian business’ then Hobby Lobby doesn’t have to use contraceptives, I’m not exactly sure where you’d place a condom on a business anyways – or what they’d be having sex with. ;)

      • Mike 666

        Almost every church is a christian business. Some of these churches have had or do have banks. Some of their pastors have several mansions. Its a billion dollar industry that pays no taxes.

        That aside, imagine if every business in America was run by radical muslims. And they were allowed to not hire or serve christians, atheists, etc.

        If you give religious radicals an inch, they take miles. The middle east is a perfect example. Im not sure about contraceptives, but I am looking at the implications of giving corporations rights that should only belong to individual persons. Its a slippery slope and history has shown that radicals will ride it as soon as it appears.

        That is my worry.

        • WillBell

          I agree completely. :)

  • Sterling Ericsson

    A company is not a person. A company cannot have a religious belief. Was Hobby Lobby baptized? Did the corporate building show up at church and take communion?

    The entire idea is ludicrous.


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