March 26, 2014

Religious Liberty on Trial Before the Supreme Court

Justices consider Hobby Lobby’s challenge to the contraception mandate.

The Affordable Care Act is the law that keeps on giving. Last time it was before the Supreme Court, Chief Justice John Roberts validated the horror that is ObamaCare when he declared the individual mandate penalty to be a tax, and thus within the constitutional power of Congress to create. Tuesday, the Supremes heard another challenge to the law in the form of Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius – both cases dealing with mandates and religious liberty.

Hobby Lobby is an arts and crafts chain owned by evangelical Christians. With more than 13,000 employees, the company faces potential fines of almost $475 million a year if it fails to comply with ObamaCare’s demands. Conestoga Wood Specialties is a kitchen cabinet manufacturer owned by Mennonites, and, with almost 1,000 employees, it faces penalties of $35 million per year for failure to comply. The owners of both companies contend that complying with ObamaCare’s mandate that employer-provided health insurance cover contraceptives – even more specifically the mandate that coverage include abortifacients – would force them to violate their sincerely held religious beliefs. More than 300 plaintiffs in over 90 lawsuits have joined them in the fight.

The suit pits the First Amendment’s free exercise of religion and the Religious Freedom Restoration Act (RFRA) against ObamaCare. Under RFRA, the government may not substantially burden the free exercise of religion unless it can show that the burden advances a compelling interest using the least restrictive means of achieving that interest. (This is the federal law that is mirrored in Arizona, the amendment of which was the subject of the kerfuffle there last month.)

The Obama administration argues that business owners from the corner dry cleaner to corporate giants like Exxon give up their constitutional right to exercise their religion when they establish a business. And in essence, leftists want the government to stay out of their bedroom, but they want taxpayers and employers to pay for what happens in it.

The Court’s female justices, Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg, dominated the questioning of counsel during the oral argument, trying to make the issue one of “women’s rights” instead of religious liberty. Sotomayor asked whether corporations objecting on religious grounds to providing contraception coverage might also object to vaccinations or blood transfusions. Ginsberg asserted that it “seems strange” that the RFRA could have generated bipartisan support if lawmakers thought corporations would use it to enforce their own religious beliefs.

Kagan claimed that the corporate challengers are taking an “uncontroversial law” like the RFRA and making it into something that would upend “the entire U.S. code,” since companies would be able to object on religious grounds to laws on sex discrimination, minimum wage, family leave and child labor. She complained that “everything would be piecemeal and nothing would be uniform.” Forced uniformity is the leftists’ goal, after all. But if employers wanted to claim religious objections to the minimum wage, why haven’t they already?

Sotomayor and Kagan each outrageously suggested that employers who have moral objections to ObamaCare mandates should drop health care coverage for their employees in favor of the tax. “But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than the cost of health insurance at all?” Sotomayor asked.

Justice Anthony Kennedy, often the swing vote, voiced concerns both about the rights of female employees and the business owners. He asked what rights women would have if their employers ordered them to wear burkas, a full-length robe commonly worn by conservative Islamic women. Later, on the other hand, he seemed troubled by how the logic of the government’s argument would apply to abortions. “A profit corporation could be forced in principle to pay for abortions,” Kennedy said. The government’s “reasoning would permit it.”

The First Amendment plainly states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” And the Religious Freedom Restoration Act adds statutory backing to that liberty by protecting people and businesses against infringement of their liberty. Yet ObamaCare’s entire structure is about forcing people to engage in buying health insurance while dictating what that insurance covers. In a nation of 300 million people, this is bound to cause problems beyond basic infringement of liberty.

Tragically, the Court upheld the law as a whole in 2012, but, on the bright side, it appears the contraception mandate will be struck down, and the vote against it may even be 6-3. We’ll find out this June.

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