By Rick Plasterer
An acute threat to religious freedom at the very practical level of day to day life was the topic of two presentations at the Family Research Council on Wednesday, February 20. Adele Keim, Legal Counsel for the Becket Fund for Religious Liberty spoke on the major threat to religious liberty entailed in the HHS contraceptive/abortifacient mandate, while Kellie Fiedorik, Litigation Counsel of the Alliance Defending Freedom, spoke on the severe threat to personal liberty of conscience caused by laws guaranteeing homosexuals rights to public accommodation.
Noting that the contraceptive/abortifacient mandate was “a major change in the law,” Keim observed that as late as 2007 the 8th federal circuit court said that an employer was entitled to exclude such coverage under federal law. While there were 26 states which mandated contraceptive/abortifacient coverage prior to the HHS mandate, all of them had a major escape clause which permitted employers to avoid sponsoring coverage for objectionable services through self-funded plans. By contrast, the Affordable Care Act (commonly called the “Obamacare” health reform law, which is the legal basis for the HHS mandate) has “no more escape clause that religious employers or religiously motivated employers can use to get around the objectionable mandate,” Keim said. That the Obama Administration is specifically attacking religious liberty seems clear from the fact that the regulation exempts 90 million Americans from its provisions in a non-religious “grandfather clause,” but no exemption has been granted to religious employers beyond a very narrow one for houses of worship. This has resulted in 14 lawsuits by religious employers claiming the right to exemption which are making their way through the federal court system.
Religiously motivated employers in private, for-profit businesses are the most exposed of the affected categories in the mandate (having no protection from its provisions at all), and Keim reviewed a high profile case with which she has been involved, that involving the Hobby Lobby arts and crafts retailer. This for-profit business is owned by the Green family, and each member of the family signs a pledge to run their business on Biblical principles. “Hobby Lobby closes on Sundays, they play Christian music in their store, they own an affiliate chain of Christian bookstores … [and] they take out ads every Christmas and Easter, in which they invite their readers to come to know Jesus Christ as their Lord and Savior.” She noted that in owner David Green’s 2005 book recounting the development of the business, one chapter is entitled “This Is Not a Secular Business.”
Against the Administration’s claim that corporate limitation of liability insulates employers from the moral consequences of their actions, Keim noted that this limitation would not protect an individual against claims of administrative malfeasance. Also, in another attempt to curtail religious freedom through redefinition, the Administration claims that liberty of conscience should apply only to the non-profit sector. For-profit employers lose their religious liberty at the beginning of the work day. But Keim noted that the Constitution does not distinguish between for-profit and non-profit bodies. Sustained public opposition to the Administration’s attack on religious freedom is crucially important at this time, Keim said. “This time around, it’s truly critical that religious believers, and indeed all people of good will, speak up again, and let HHS know that it’s not acceptable to draw lines around the First Amendment … religious business owners are as much entitled to conscience protections as churches and seminaries.”
The legal battle the government is waging against liberty of conscience with respect to contraception and abortion really is about the government’s attempt to mandate acceptance of the sexual revolution and repudiation of Judeo-Christian sexual morality. The outcome of the battle will have a great bearing on the other liberty of conscience battle, which is being waged against liberty of conscience with respect to homosexuality. Indeed, it may well be that the Obama Administration is waging the first battle, at least in part, to facilitate victory in the second. That battle, discussed by Kellie Fiedorik of the Alliance Defending Freedom, will be reviewed in a subsequent posting.