Commentary Magazine


Topic: Burwell v. Hobby Lobby

Dems Overreach in War on Women Reboot

Today’s Supreme Court decision in Burwell v. Hobby Lobby made it clear that religious liberty trumps ObamaCare’s policy dictates. That’s bad news for liberals who believe their vision of universal health care can override the Constitution as well as Republicans. But the silver lining for Democrats is that they think the decision will allow them to reboot their war on women theme just at the moment when it seemed the public might be tiring of it.

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Today’s Supreme Court decision in Burwell v. Hobby Lobby made it clear that religious liberty trumps ObamaCare’s policy dictates. That’s bad news for liberals who believe their vision of universal health care can override the Constitution as well as Republicans. But the silver lining for Democrats is that they think the decision will allow them to reboot their war on women theme just at the moment when it seemed the public might be tiring of it.

In Hobby Lobby, the court’s 5-4 majority established that the only guarantees that counted in the case were those of the First Amendment and Religious Freedom Restoration Act that set a high standard for the government to prove that it had a compelling interest to force citizens to violate their religious beliefs. As the decision stated, when it came to matters such as employment discrimination, faith cannot be an excuse for open bias. But the notion of the “right” of citizens to have free contraception or abortion-inducing drugs paid for by an employer who thinks such services violate their religion doesn’t meet the test.

The only parties that were potentially deprived of their rights in Hobby Lobby were the religious owners of the chain stores and other business people in a similar situation. The ObamaCare mandate treated their faith-based opposition to abortion drugs as irrelevant to the desire not for access to such drugs but to compel employers to pay for them. The court rightly decided that to do so to closely held corporations like Hobby Lobby was to create a situation in which the owners must choose between their faith and the right to do business. This would have been an intolerable violation of their rights that would create a cribbed definition of religious liberty in which faith must be abandoned in the public square.

Yet for Democrats, this commonsense reassertion of First Amendment protections is a new war on women being waged not by congressional Republicans but by conservative justices.

That’s the message being repeated endlessly on the left as it attempts to turn Hobby Lobby into a judicial version of Todd Akin’s infamous comments about rape and abortion. As Politico reports, it didn’t take long for Democratic operatives to begin ginning up their war machine in which the decision is now framed as an effort to impose fundamentalist religion on non-believers and to tell women what they can or cannot do with their bodies.

But what the Democrats are forgetting is that a Supreme Court decision protecting constitutional rights is not the moral equivalent of a political gaffe. Try as they might, Justice Samuel Alito’s ruling is not a repeat of Rush Limbaugh’s line about contraception advocate Sandra Fluke being a “slut.”

No one, not even the Green family that owns Hobby Lobby, is telling Fluke or any other women who wants free contraception or abortion drugs not to have sex or to use these products. But they are making it clear that they should not be forced to pay for these widely available items. Do the Democrats think Americans are so stupid as to misconstrue this entirely reasonable position as a war on women?

Given the events of 2012 when a few stray remarks by Limbaugh and then Akin morphed into a media-driven campaign meme about Republicans and women, perhaps they’re not far off. Limbaugh’s foolish comments about Fluke after she testified before Congress against the mandate helped transform a debate that up until that moment had been correctly focused on the Catholic Church’s principled opposition to the federal plan. Soon, everyone, at least in the mainstream media, was discussing how mean conservatives were to women, not religious freedom.

But a court decision is not so easily hyped into that kind of a distortion. Whether Americans agree with the Greens about abortion, and most probably do not, the reasonable center of American politics understands that this case is about balancing one demand for a benefit against rights. Turning that sort of a nuanced ruling, which limited the impact to a specific kind of company and which also set limits on how far faith could override policy mandates, into a one-liner requires more than an ad buy; it can only work when political operatives are in “big lie” mode.

The Democratic push will fire up their base and that is probably all they really want. But they must also be careful. No one liked it when Limbaugh insulted Fluke and Akin’s comments were as stupid as they were indefensible. But Alito’s decision is the sort of commonsense approach to policy that most Americans crave in that it defended principle while also recognized that even faith can go too far. If Democrats go all-in on an attack on religious liberty, barring a similar error such as that of Limbaugh, they may be the ones overreaching on the issue.

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Religious Liberty Trumps ObamaCare

In ruling against the ObamaCare contraception mandate today in Burwell v. Hobby Lobby, the U.S. Supreme Court upheld a fundamental principle of American law. While the administration hoped to establish a precedent that would have ensured that its policy goals about free contraception and abortion overrode the rights of individuals, the court said no. Religious freedom trumps ObamaCare and the government’s war on faith.

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In ruling against the ObamaCare contraception mandate today in Burwell v. Hobby Lobby, the U.S. Supreme Court upheld a fundamental principle of American law. While the administration hoped to establish a precedent that would have ensured that its policy goals about free contraception and abortion overrode the rights of individuals, the court said no. Religious freedom trumps ObamaCare and the government’s war on faith.

At stake in this case was the question of whether the government could compel companies to pay for services that its owners asserted violated their right to religious freedom. In this case, it was the abortion-inducing drugs that the Christian owners of the Hobby Lobby chain of stores refused to include in the insurance coverage they offered employees. The government’s position was that such companies do not have First Amendment rights that protect free exercise of religion. But what the court has done today is to make clear that no policy goal justifies abrogating religious freedom.

Doing so does not overturn the Affordable Care Act or make it unworkable. Indeed, the decision will probably not even affect the ability of individuals who work for such companies to get free coverage for such drugs since it is likely that the government will now step in and pay for them. Nor does it claim that all companies can assert such rights since the decision restricts itself to the fate of closely held corporations rather than public companies run by people with diverse views and interests. But it does deal a devastating blow to the concept that government mandates can run roughshod over religious freedom when applied to those who do business.

Had the government prevailed, the result would have been a new cribbed version of religious freedom that would have allowed it only in houses of worship or at home but not in the public square. Under those circumstances, those choosing to operate businesses or to avail themselves of the protections afforded those who incorporate enterprises would be forced to make a choice between their faith and their economic interests. As Justice Alito rightly notes in the majority decision, when Congress passed the Religious Freedom Restoration Act, it “designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice.”

Liberals have mocked the idea that corporations are individuals with rights, whether of political speech (which the court protected in the Citizens United decision) or religious liberty as in this case. But the point here is that by extending free exercise rights to corporations, the Constitution is guaranteeing them to the individuals who own them. Citizens are not stripped of their religious freedom when they incorporate.

Similarly, opponents of Hobby Lobby and the other companies associated with this case have asserted that granting religious liberty to such entities creates a slippery slope that will enable all sorts of discrimination in the name of faith. But, as the court held, the government has a compelling interest in protecting citizens against such actions. It could make no such case for forcing business owners to pay for abortion-inducing drugs.

The mandate’s supporters have sought to frame this issue as one of women’s rights or health but that is utterly specious. No one is preventing anyone from obtaining contraception or abortions in this case. But it does not follow that the government has the right to compel companies to pay for such services when they contradict the religious beliefs of its owners. Those who wish not to be forced to pay for such services are not imposing their faith on others. It is, instead, the government that is trying to force people of faith to abandon their values if they want to operate publicly.

This precedent will not apply to companies with diverse ownership that do not all agree about religion. Yet by carving out a place in the public sphere for companies like Hobby Lobby, whose proprietors live out their faiths even when they do business, the court has reminded a government whose appetite for power seems unquenchable that the First Amendment protections of religious expression apply in the business world as much as they do in churches, synagogues, or mosques.

One needn’t agree with the Green family, which owns Hobby Lobby, or with the Catholic Church that successfully campaigned for exempting religious institutions and non-profits from the mandate, about either contraception or abortion, to understand that if the government can take their rights away, no one’s freedom is safe.

At the heart of this case was more than a government regulation. Universal healthcare is, in principle, a noble goal. But when it is interpreted to mean that the government guarantees those who wish to avail themselves of contraception or abortion services may compel those whose faith opposes these things to give it to them for free, it becomes a form of tyranny. Even if we were to concede that the Affordable Care Act is good for the country, which I do not, its ambition to expand insurance coverage is not sufficient to justify mandates that treat religious liberty as an afterthought at best.

As with so many other difficult cases being decided by the court these days, Hobby Lobby hinged on the attempt to balance the desire of liberals to expand the power of government with constitutional principles. Religious liberty may not be set aside merely because it can, under some circumstances, interfere with the liberal project. The Constitution can be a very inconvenient document for those who want to ignore its restrictions on the ability of government to do what it likes. But at least in this instance, the court has reminded us that religious freedom cannot be sacrificed on the altar of President Obama’s signature health-care law.

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