Commentary Magazine


A Victory For Religious Freedom

The decision last year by the U.S. Supreme Court to deem ObamaCare constitutional was a blow to opponents of the president’s signature health care legislation, but it also added to the worries of those Americans who considered it a threat to their religious freedom. In particular, the decision by the Health and Human Services Department to demand that employers provide certain types of health services placed those religious believers who opposed the use of abortion-inducing drugs in a difficult position. They could go along with the HHS mandate and thus betray their consciences and beliefs, or resist the ruling and face complete financial ruin due to the draconian penalties imposed on businesses that do not comply with the government’s rulings.

But with the aid of the Becket Fund for Religious Liberty, the Green family, which owns the Hobby Lobby chain of stores, sued to prevent the government from imposing the mandate on their business. Yesterday, the Greens won a key victory when the 10th Federal Circuit Court of Appeals overruled the district court and said Hobby Lobby should not have been denied an injunction that would have prevented the government from imposing millions in fines while the case was still pending. In doing so, the majority of the appellate court judges said the Greens had a good chance of prevailing on the merits of their case—Hobby Lobby v. Kathleen Sebelius—which claims that the Federal Religious Freedom Restoration Act ought to prevent HHS from imposing practices on the business that effectively deny the religious freedom of its owners. While the Hobby Lobby case still has a long way to go, this is an important win that not only holds out the possibility of eventual triumph for the plaintiffs but also removes a key weapon from the government that might have made it impossible for the suit to go on.

When the HHS mandate was first handed down, the key battle was fought over the government’s desire to impose the contraceptive mandate on the institutions of the Catholic Church. While the administration was able to manipulate the discussion of this direct attack on religious freedom into one about a so-called “war on women,” eventually a campaign of public pressure led the government to back down on their desire to enforce the mandate on both churches and then church institutions. But that still left individual business owners who had strong religious convictions in the cross-hairs of the HHS mandate. The administration calculated that if it removed the church from the fight on the mandate, it would be able to easily defeat the efforts of people like the owners of Hobby Lobby to resist.

They may eventually prevail, but the decision of the 10th circuit gives hope to those who believe the willingness of the government to intrude on individual consciences in this manner is outrageous.

It should be specified that the owners of Hobby Lobby are not attempting to prevent their employees from having access to contraception. But making religious Catholics pay for abortion drugs crosses the line between reasonable insurance regulations and a concerted attack on religious liberty.

Liberal defenders of the HHS mandate have characterized resistance to the mandate as an attack on women’s health while claiming the regulation does not deny the store owners’ right to worship or to personally refrain from any practice that offends their religion. But if the government eventually prevails, it would impose a cribbed version of religious liberty that would significantly impair the First Amendment rights of believers.

The government and its defenders seem to believe that religious freedom means only the right to believe something and to practice it in private. If the HHS mandate were upheld, it would signal to the country that faith is fine at home or in houses of worship but not in the public square. Religious believers would be told that if they wish to practice their faith they must refrain from commerce or any public activity. Forcing the Greens to pay for abortion drugs is no different from telling them they must keep their stores open on Sunday (they are closed on that day due to the owners’ religious beliefs) or to require a Jew to keep his business running on the Sabbath or that they must serve non-kosher food at kosher restaurants.

It may be that the Greens’ views on these drugs are not universally held and may, in fact, be unpopular. But one needn’t agree with them on contraception in order to realize that an attack on their religious freedom is a blow to the liberty of every American no matter what their faith, or even if they believe in no religion. This preliminary win for Hobby Lobby and the Becket Fund is a hopeful sign for the future of American liberty.

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