Establishing Religion?

Should private companies be able to establish the religious beliefs of their owners as the norm for their employees? We need an ongoing, public, exploration of our differing religious ethics. We need inter religious dialogue so that we begin to understand what is really at stake when we talk about the establishment of religion, or the prohibiting of its free expression.

As I write the owners of Hobby Lobby, a large chain of retail stores, are engaged in a legal battle with the Obama administration over whether those owners can be obliged to provide insurance coverage for their employees that has provision for birth control. The central legal question according to published reports is whether the government’s responsibility to act in the public interest overrides the individual’s right to manage his or her employees according to the dictates of his or her religious beliefs.

This isn’t purely a constitutional issue. The first amendment states: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ Yet it doesn’t define religion and whether the exercise of religion is a corporate or personal matter. Thus the Religious Freedom Restoration Act of 1993 seeks to define more clearly just who is protected by the first amendment to the constitution by extending those protections to individuals, and not only religious organizations and their members and leaders.

But the Hobby Lobby case, and many others, isn’t just a matter of the individual freedom of a business owner in the face of mandated behavior by the government. It appears from at least one public statement I’ve heard that the Obama administration will argue that this is also about the individual religious freedom of employees. In theory their ability to make health care decisions according to the dictates of their conscience is infringed if the full range of options for health care are not covered by insurance. An employer who limits the scope of insurance coverage on the basis of his religious beliefs is effectively imposing those beliefs on employees.

A counter argument is that since these medical options are available on the open market the employee still has a choice. And the counter-counter argument is that the cost of options on the open market makes them so expensive as to preclude them being an actual option.

So this isn’t just about birth control or even medicine. It is about a complex matrix of relations between an individual’s free exercise of his or her religion, and the government’s mandate to both protect that freedom and to act in the public interest when that public interest may restrict that freedom.

And it is forgotten that a Christian concern about birth control is by no means the only religious concern about government mandates.

There are religions (including many forms of Islam) that teach that all modern forms of insurance are prohibited, because insurance is essentially a means of predicting and accounting for the future. And in this it infringes on God’s sovereignty. And there are Christian groups that insist that virtually all medical interventions are immoral. Could an employer deny all insurance benefits to employees on these basis?

There are religions that teach that blood transfusions are immoral. Could an employer insist that any insurance he or she provides to employees specifically disallow payment for blood transfusions? On the basis that these are readily available for a fee and that the employee himself or herself can pay out of pocket?

Or to go a step further. There are religions that teach that God prohibits the human consumption of all sorts of animal products commonly found in various medications. Could an employer insist that an insurance provided must explicitly exclude coverage of medicines that have, for example, gelatin?

And finally, different religions have ethical mandates that clearly influence the ways in which individuals can spend and invest their money. Could an employer insist that the employer’s contribution to a personal pension play never be used to invest in companies making forbidden products (alcohol, tobacco, guns, etc)?

Who owns, in other words, the monetary value of an employee benefit? When it is spent, whose religious beliefs and practices are at stake?

I would argue that the Hobby Lobby and indeed the many other institutions currently challenging the Obama administration are effectively seeking to do to their employees what the constitution forbids the government from doing: establishing religion. What they haven’t considered is that Christianity isn’t the only religion in the US, and that Christian employers are not the only ones who will wish to carry their personal religious mandates into the lives of their employees. If they looked a little more broadly they would see that the rights they demand for themselves might result in other employers imposing on their sons and daughters ethical mandates that they find repugnant.

This is why we need an ongoing, public, exploration of our differing religious ethics. We need inter-religious dialogue so that we begin to understand what is really at stake when we talk about the establishment of religion, or the prohibiting of its free expression.

  • Gary Simmons

    1. “I object to this coverage, but pursuant to the proposed amendment made by the USCCB last year, I’d like to drop contraception and expand the healthcare package my organization offers elsewhere so it still matches dollar-for-dollar and I’m not just claiming CO status to save money. If they want to buy it on their own dime, that’s not imposing on me in any way, though.”
    2. “I object…, and I’m trying to make contraception illegal.”
    3. “I object…, I’m trying to make contraception illegal, AND the penalty for its use should be imprisonment unless one confesses the sin to a Catholic priest and does whatever penance he prescribes.”

    There are two logical levels between giving a conscientious exemption and imposing one’s religion, constitutionally speaking. Why should anyone trust a pro-Patriot Act, pro-NDAA administration to actually give a damn about the Bill of Rights?

    On another note: not all of the religious scruples above would conceivably pass the Sherbert test. I find it unwise to posit them on equal grounds.

    Look at it this way: imagine the bookstore industry was tanking, and the government mandated that everyone must buy at least one book a year. Also: every single bookstore must have impulse displays of Mein Kampf which are available for free. Now, if you’re Jewish, it would be offensive to spend a single dime at any institution that supports Naziism, but people insensitively say “it’s not imposing on anyone. No one says you HAVE to buy a copy of that book!” …but spending money there perpetuates the abhorrent ideology, and the government “MK Mandate” enforces that *every* bookstore must carry it, so you cannot vote with your feet the way religious people have always done.

    This is like that, except worse. Catholics are guilty of mortal sin for cooperating in an intrinsically evil act. Nobody is guilty of mortal sin for having to buy their own contraceptives or else have organic sex like people did before contraception. Medicine exists to restore function to a dysfunctional part of the body. Poison, which is what contraception is, does the reverse by causing a healthy body part to be dysfunctional. One cannot logically justify calling this a need. Women do not need lady steroids to be fully human and valuable.

    • roberthunt

      Let me offer the following notes.

      It matters little whether or not one trusts the current administration. One question is whether the path they are pursuing is constitutional, and this will be decided in court. The other is whether making employers exempt, on grounds of conscience, from providing certain kinds of insurance is an imposition of their religious scruples on their employees. Clearly you don’t think that it is. I think it could be. Because, I have noted, the cost of purchasing such insurance by an individual on the private market is so prohibitive as to effectively make the failure of the employer to provide it a denial of the possibility of having such insurance.

      I have also noted that other objections to providing insurance on the basis of conscience would far exceed in cost for the individual that of purchasing birth control. Where would one draw the line?

      You supposedly parallel example is misdirected. There is no proven public interest in keeping bookstores in business, and in any case (note the auto bailout) there are mechanisms for bolstering failing businesses other than forcing the purchase of a product by the general public. With regard to forcing people to see something they may find objectionable I’m afraid this already the a lost battle. Here in Texas the government, under the influence of Christian fundamentalists, forces children to be exposed to creationist theories that I find deeply objectionable. But of course those Christians find the theory of evolution in textbooks objectionable. Health warnings on the side of cigarette packets are objectionable to a lot of people. And so on. The constitution doesn’t offer the freedom to not be offended by the things the government does and promotes. It does give you the freedom to publicly state your objection.

      With regard to medical insurance there is a proven public interest and an existing supreme court ruling with regard to mandating purchase. The question at hand is whether the government should mandate that an employer purchase something on behalf of an employee if that purchase offends the religious values of the employer.

      Finally let me note that neither the government nor the public have an interest in the immortal souls of individual persons, nor does the government have an interest in the offended or not offended state of the individual conscience. Indeed, neither the government nor the public have an interest in judging the circumstances under which a person regards himself or herself as fully human and valuable. The criteria for public interest in birth control is not a theory of human health or wholeness. It is a calculation of cost to the public. Having the government making any judgment, negative or positive, in matters of the immortal soul, or the offended conscience would implicitly involve establishing religion – which is forbidden by the constitution.

      • Gary Simmons

        Thank you for the cordial response, sir.

        I will admit: one’s opinion of the administration in question really is a non sequitor. As a pacifist who is becoming Catholic, though, I sometimes vent frustration about the Nobel Peace Prize winner in chief when it is unnecessary.

        “Clearly you don’t think that it is. I think it could be. Because, I have noted, the cost of purchasing such insurance by an individual on the private market is so prohibitive as to effectively make the failure of the employer to provide it a denial of the possibility of having such insurance.” <– Here you pick a moderate stance, and a compelling reason. Do you mind if I follow your blog? I think I will. Anyway: this is a good point. Contraceptive coverage under its own policy may be costly; I wouldn't know. I'm a single guy who's never used any and I don't plan to.

        If Catholic employers (and others) were free to carry an alternative package, perhaps expanded in some way so that it actually costs MORE, what then? It would still leave a prohibitive (as far as I know?) cost on contraception. I still do not understand, though, why that is treated as such an inalienable right. It isn't medicine when it's being used for recreation. Shouldn't health insurance focus on needs first and luxuries later?

        As for my analogy: all analogies fall short if pressed hard enough. I'll admit that one was particularly weak. However, the point was to illustrate 1. that even aiding a company which itself perpetuates an abhorrent thing (Nazi ideology, for instance) is inherently a conscience violation, even if one does not personally buy or read a copy, and 2. there's no way to vote with your feet and buy books from a store that did NOT cause the same conscience violation. I believe in those two respects, the analogy still works: 1. it's aiding in the continuation of a practice that is to’evah, and there’s no room for alternative fulfillment of the mandate.

        As for the Creationism thing: I grew up in Fort Worth and did not have creationism taught to me. I will confess: I read some Geisler and other creationist writers and it led me to biblical studies rather than biology by the time I entered college. Though I am not a creationist, that was the best mistake I ever made. As far as that issue goes: I wish (a weak word, isn’t it?) that we covered Genesis 1-3 in school somewhere, and did so in such a way that would expose children to seeing myth (truth in narrative form) for what it is, rather than assuming that “it is true, therefore history [because the modernist understanding of truth demands that truth be history].”

        But that’s neither here nor there. I understand your frustration and share in it, given that Texas is my home state. You also make a good point more generally concerning the difficulty of avoiding offense and the occasional necessity of doing something others find offensive.

        There are, though, different levels of offense. The biblical meaning is more than simply irking someone. I am sure a few people lose sleep at night over the teaching of creationism. That is noteworthy. People are losing sleep at night over this mandate on both sides. That is noteworthy. The only people losing sleep at night over cigarette labels are tobacco manufacturers, and that is not a noteworthy level of offense. I believe that these issues should all be addressed, though I know hearing people complain about this and that is a pain. That’s why lawyers get paid so much! :D

        I fear this post is too long already, so I’ll respond to the last paragraph later.

        • roberthunt

          Just a quick note to thank you for the thoughtful response, and to point you to a more general comment I’ll post below based on a conversation with a Catholic priest who is quite involved in this issue.

  • Rev. William Britton

    Wow, I can’t say how great this article is. Thank you for doing some real thinking on this before you wrote, for pulling together some great examples, for a timely warning, and for doing so in an irenic manner. I’m definitely going to pass this on.

  • Cory Konners

    Wow, For me to. I guess you are progressive. I wrote a piece on my blog that gives a quite different view than yours if you are interested. The gist of it is that morality, or the Law of God is constituted as religion when it is not. This is the major mistake that you make it is also the Constitutional view and the framers and founders if you care to look. The law of God or morality holds for all people, it is not a choice like the church in America would like to make it.

    • roberthunt

      Thanks for this comment. I’ll look forward to reading your blog and better understanding your perspective.

      I should note that I don’t particularly identify with “progressive Christianity.” I am theologically quite orthodox and don’t particularly agree with some “progressive” political positions.

  • Bo

    Though likely unintended, this article best explains how obamacare, socialism and communism are actually imposing on Separation of Church and State by establishing a State religion with a doctrine that opposes a wide number of religions. The difference is this religion preaches a doctrine of death. The reality is a large number of Christians are forced to go without healthcare because of this evil plan to line the pockets of insurance companies with the profit of dead babies and dead aging adults. They will be forced to pay a penalty yet receive zero healthcare because they cannot pay for the deaths of others so they are faced with death themselves. Come Lord Jesus. Come.

    • roberthunt

      I’m not sure you fully understand the mandates under the present health care law. Individuals are required to purchase insurance, but that insurance is not required to provisions they object to. (It is different for employers who purchase health care for their employees.) You seem to be arguing that any participation in the health insurance industry plays into a “doctrine of death.” Of course this could be said for any participation in any industry. The same people that drugs that heal make drugs that can kill.

  • roberthunt

    I appreciate the comments above and want to add something I learned from a Catholic priest involved in these issues. His point was that beneath all the specific issues of providing insurance covering birth control and possibly abortion is a deeper philosophical issue: Who determines whether an organization is religious and therefore is excused from a government mandate on religious grounds? He notes that in the past religious organizations self-identified and that short of fraud the government recognized this self-identification. Where he sees a difference is the under president Obama Health and Human Services imposes its own definition of what constitutes a religious organization, without reference to the organization’s self-understanding. This, he believes, would be problematic regardless of the specific issue at stake. This helps clarify, I think, aspects of where the constitutional issues lie – which again is in what constitutes “religion.”

  • Joshua

    I also wanted to chime in and give this article a very favorable thumbs-up. This article thoroughly articulated the precedent this case could set for other employers with other religious convictions.

    I remember reading about this case months ago, and I commented on how problematic it is to be a Christian insisting on mixing their convictions with running a secular business in the public sphere, in a pluralistic society. I leaned toward Hobby Lobby backing off of the case, because I felt that while the “pro-life” angle is just too simplistic and inconsistently employed by Christians to be an effective argument, I couldn’t articulate the answer to the typical just-find-another-job or just-pay-out-of-pocket responses.

    The conclusions you came to regarding the possible precedents this case could create should cause all Christians, business owners or not, to take note.

  • Joshua

    Furthermore, I appreciate your conclusion that, by modifying an employer’s health care options, they are implicitly establishing their employees’ religious convictions for them, even if in the slightest.

    Besides the legal ramifications, I find it curious to weigh other implications: What if a female employee became pregnant (she was disallowed from obtaining reasonably-priced birth control, after all)? Would she be fired for having sex while unmarried, or eventually fired for missing work due to pregnancy-related issues? Are employees expected to remain celibate as a result of their employer’s convictions?

    Eventualy … would the employer have a problem how the employee chooses to spend their money (they’re paying for it, after all) and, in turn, live their life?

    Of course, one may think this is all unnecessary speculation, and this wouldn’t be a problem if Hobby Lobby only hired Christians that shared their convictions–but that’s discriminating against non-Christians, and Hobby Lobby is a business, not a church.

    All in all, this can be a very complicated issue.

  • Gary Simmons

    I’m sorry, but I still don’t see how an exemption would be in any way modifying the beliefs of the employees. Does secular hedonism consider it a mortal sin to either practice abstinence or pay for one’s own bedroom accessories? If this seriously puts them at risk of damaging their consciences, then we have a clash of the 1st-amendment rights of some vs. the same rights of others.

    Otherwise? No. And with regards to someone who just really hates blacks, or something: no, it’s not on the same field. There is not any conscience protection of racism. A conscience exemption based on a 2,000-year-old church’s consistent stance on an ethical matter — which hasn’t been constitutionally challenged before — cannot be compared to a Johnny-come-lately racism which has been definitively held unconstitutional.

    This is the lazy reasoning that fluffs the numbers on the anti-conception side.

    Oh, and on how an employee spends his/her money: no, that’s not the same thing. There’s this social contract that’s thousands of years old and exists all over the world, you see. You need to eat. You need shelter. Nowadays, you might want education or to repay loans. If I have money, I just might give you money so that you succeed at those objectives. If you have money left over and use it for means I do not find acceptable, well, if it’s not done on the job, then I am not materially (that is, substantially and in an immediate, purposeful way) cooperating with that. Employers give wages on the assumption that people generally use wages to survive, and survival is not an immoral goal to fund.

    If giving wages to employees who contracept is immoral, then it is also immoral to be a good samaritan. I mean, maybe that guy in the road is half-dead because his wife got a knife and defended herself against him! By helping him, you could become an accomplice to murder since he’s gonna go silence her once he’s done at the inn.

    Do people not know the difference between immediate and remote cooperation? Really? There are plenty of Catholic bloggers RIGHT HERE ON PATHEOS who articulate that distinction. The ignorance on this matter is willful, deliberate, and unacceptable.

    • roberthunt

      There are a couple of problems here. First the present Catholic teaching regarding birth control and abortion isn’t thousands of years old. It dates to the early 1970′s. Prior to that Catholic doctrine set various dates concerning whether a fetus was viable, and thus possessed a soul. It is also problematic for Catholics that their church has now (quite recently) decided that taking the life of an innocent (in this case defined as a fertilized egg) is an absolute moral evil. While there is certainly an arc of ethical reasoning that can be traced to present Catholic doctrine it is anachronistic to think that it has always been the same.

      I would ask how are wages different from benefits. Employers don’t “give” wages. They repay the debt they own their employees for services rendered, not because of some charitable moral concern for the employees survival. They give benefits for the same reason. And they have zero moral right to make any judgment whatsoever as to the use of either. The first hour an employee works the employer has ceased having ownership of the wages and benefits and is simply holding them until payday. The distinction you make is specious and is based on old feudal assumptions that some kind of capital owning class has its money simply as a birthright and is being generous by giving it to those who have to actually work.

      Finally, establishing religion doesn’t mean telling people what they must believe. It means using coercive power to force them into religious practices (in this case abstinence from birth control) that don’t belong to their personal faith and may oppose it. And yes, the government is also coercive in this regard. It forces people to do all sorts of things they don’t believe in, for the common good under a mandate from the people who are the source of all political power. The question is where to balance the common good with individual freedom of conscience and action. But here’s the rub. That is also a decision the people make through their elected representatives – which can make life hard for people with real convictions. One might ask who is a better Christian – the owner of Hobby Lobby or the Berrigan Brothers. I’ll take the latter.

      • Gary Simmons

        οκνηρον εστιν το σημαινειν σοι. τουτου χαριν ησυχασω, αλλα το προτερον λεγω οτι ου καλως ειπες περι της διδαχης της εκκλησιας. Ποτε ειπεν η εκκλησια οτι εξεστιν χυειν αιμα δικαιον; ο της Ιωδηρ βιβλος, οταν ο πολεμος ουκ εστιν δικαιος, αντιλεγει σοι, αυτος αναβαπτιστης ων.

        ο πραγματευομενος και ο εργατης αμφοτεροι δοκουσιν οτι αμφοτεροι χρειαν βρωματος και ποσεως εχουσιν. ο μεν δια τουτο πραγματευεται, ο δε μισθουται τω πραγματομενω. ταυτα δικαιως τιθεται πρωτα εν τη του Μασλω ιερατεια των χρειων. καλως δε ειπες οτι α πραγματευομενος μογις ευεργατης εστιν. συμφημι.

        εστιν καιρος εν ω δει θεω υπακουειν μαλλον η τον ανθρωπον αρεσκειν; ναι, λεγω.

        Και νυν ησυχαζω. ειρηνη σοι.

        • roberthunt

          My Greek is pretty rusty, so I wouldn’t dare pretend I fully understand your reply concerning the teaching of the church in the relation to the Bible and your assumptions about my own Protestant approach. I do think you read too much into my words. Thus I scarcely know how to formulate an appropriate response.

  • Susan Buchanan

    Robert, thanks for your thoughts. I shared some similar thoughts in a blog post I wrote last year One of the arguments that seems consistently overlooked is that birth control saves women’s lives. The majority of women take the pill for reasons that aren’t related to birth control, but it wasn’t until 2000 that it was covered by insurance like any other medication.

  • billy mcmahon

    This is very interesting… well written! I’ve been following the Hobby Lobby story lately.