by Brandon McGinley
While Hollingsworth v. Perry and U.S. v. Windsor have grabbed the headlines, this has been a remarkably important week for the religious liberty concerns raised by the HHS contraceptive/sterilization/abortifacient mandate.
On Thursday, a federal court informed Christian-owned arts-and-crafts chain Hobby Lobby that it does not have to pay the millions of dollars of fines it is accruing while pursuing legal challenges to the mandate. The judgment frees the company to continue litigation without being forced out of business by confiscatory fines of $100 per day per employee. Hobby Lobby employs 13,000 people.
More than that, the 10th Circuit Court of Appeals strongly indicated that Hobby Lobby–and all for-profit organizations who have challenged the rule, such as Pennsylvania’s Conestoga Wood Specialties, which is represented by the Independence Law Center–will ultimately prevail in striking down the mandate, as applied to them. The judges took a proper, robust view of religious liberty that contrasts with the emaciated “freedom of worship” view propagated by the present administration:
A religious individual may enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values. As a court, we do not see how we can distinguish this form of evangelism from any other.
And from the (clearly mildly scandalized) AP story linked above:
“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” the judges wrote.
One judge went even further in a concurring opinion.
“No one suggests that organizations, in contrast to their members, have souls,” Judge Harris Hartz wrote. “But it does not follow that people must sacrifice their souls to engage in group activities through an organization.”
In that quotation, Judge Hartz does what too few are willing to do: engage religious persons on their own terms. Most commentary in support of the mandate assumes from the outset that religious beliefs are matters of personal taste at best, and contemptible superstition at worst. But if that’s all religious beliefs are, then not only does the HHS mandate not pose religious liberty concerns, but the entire concept of religious liberty becomes unintelligible. In having the gumption to refer to the concept of the soul, Judge Hartz reminds us why religious liberty is so important: eternal souls are on the line.
One doesn’t have to believe in eternal souls to think that the state should accommodate, within the reasonable standards of ordered liberty, those who do. And free contraception/sterilizations/abortifacients are not requirements of ordered liberty.
First, this rule provides no relief to Hobby Lobby, Conestoga Wood Specialties, etc., as for-profit organizations remain outside both the exemption and the accommodation.
Second, the rule expands the organizations exempted from the mandate only marginally. Only actual houses of worship and other religious bodies, such as dioceses, denominational associations, and religious orders, are fully exempted from the mandate.
Third, the “accommodation” for religiously-affiliated non-profit organizations, such as hospitals and universities, remains, to my mind, little more than hand-waving. The United States Conference of Catholic Bishops is studying the new accommodation currently, and their analysis will likely drive the discussion of this issue moving forward.
In spite of this disappointing final rule, however, the Hobby Lobby decision has set a trajectory that looks bad for the mandate. Ultimately, one of these cases will reach the Supreme Court, where Anthony Kennedy will decide the future of religious freedom in America…