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Less than two years after the U.S. Supreme Court upheld the Affordable Care Act, President Obama’s most significant legislative accomplishment, “Obamacare” is set to be back before the High Court next month. Oral arguments for Sebelius v. Hobby Lobby Stores, Inc. are scheduled to begin March 25.
This high-profile case centers around David and Barbara Green, the Baptist owners of Hobby Lobby, a national chain of arts and crafts stores, and their children. The Green family objects for religious reasons to a federal regulation that mandates coverage of contraceptives under the Affordable Care Act. They specifically take issue with four of the 20 Food and Drug Administration-approved medications and devices, which they consider to have the potential to terminate a life.
The Oklahoma family claims that complying with the mandate infringes on their religious freedom and that the harmful impact on their consciences represents “one of the most straightforward violations of the Religious Freedom Restoration Act [the Supreme Court] is likely to see.”
The Religious Freedom Restoration Act is, of course, the legislation that the Baptist Joint Committee helped shepherd through Congress in the early 1990s. RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion” unless the burden is the least restrictive way to further a compelling governmental interest.
Many commentators and advocacy groups have sided with the Greens. Denny Burk and Andrew Walker, two young conservative evangelical thinkers (the latter being a friend of mine), wrote recently in a column that the contraception mandate “represents one of the most egregious violations of religious liberty in American history.”
Declarative statements that begin with adjectives like “egregious” and conclude with the phrase “in American history” are normally more fiction than fact.
The whipping that Obadiah Holmes received strikes me as egregious. Ditto for the Mormons expelled from Missouri in the mid-19th century. Nativists didn’t exactly go easy on Catholics then and later. Jehovah’s Witnesses have never enjoyed a religious freedom red carpet. And Muslims in Murfreesboro needed the intervention of a federal judge to get their mosque opened in the summer of 2012.
Unfortunately, hyperbole has reigned supreme in this latest church-state conversation, if it can be called that — more of a culture war-esque shouting match.
I do not doubt the sincerity of the Green family and view them as fellow Baptist Christians committed to living out their faith with integrity. I respect that and also have a real respect for their religious liberty claims. I just don’t see their case as “straightforward” as they do.
As someone who has studied church-state issues for a number of years and published on the Baptist birthing of the Religious Freedom Restoration Act, I have sincere questions about whether for-profit corporations should be entitled to religious freedom.
Judge Ken Starr, president and chancellor of my alma mater Baylor University, recently penned a thoughtful analysis of Sebelius v. Hobby Lobby from the perspective of a committed conservative and as a former U.S. Solicitor General. The Judge’s engaging piece points to the clear complexities of this case.
Starr distinguishes Hobby Lobby from publicly-traded corporations like General Motors and Google, describing the arts and crafts chain as “five individuals carrying on a family business under the umbrella of a closely held corporation.”
Yet, the characterization of Hobby Lobby as a sort of mom-and-pop family enterprise does not persuade me. Yes, Hobby Lobby got its start on borrowed money in the garage of David Green in 1972. Thirty-two years later, Hobby Lobby boasts more than 550 stores and 16,000 full-time employees, not to mention the thousands of part-time workers.
When I think of a “family business,” Hobby Lobby doesn’t come to mind.
RFRA was intended to protect persons. The coalition of religious liberty advocacy organizations that demanded RFRA 20 years ago certainly did not have corporate personhood in mind.
I share the concern of others that if for-profit corporations are granted free exercise rights under RFRA, the important act would transform from a shield to a sword — injecting employers into the private medical decisions of its employees.
How would we respond if a Jehovah’s Witness-owned corporation was allowed to deny blood transfusion coverage for his employees? What if a Tom Cruise-owned corporation was allowed to refuse its employees mental health coverage, in the name of being faithful to sincere Scientologist convictions?
And what if a Hindu or Muslim-owned corporation refused coverage to a wide array of medications and medical devices containing bovine or porcine products? More than 1000 medications would qualify.
Church-state issues are just plain complicated.
In a recent column at a popular Catholic legal theory blog, noted legal scholar Alan Brownstein expressed his worry that “political and cultural polarization is making it harder for all of us to see and appreciate the legitimate concerns of claimants who from one perspective or the other are on the wrong side of the culture war dividing line.”
“We have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars,” Brownstein wrote. “Most importantly, we should be careful not to allow our sympathies for interests aligned against particular claims prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect.”
Brownstein’s words are helpful. The politicization of religious freedom definitely does no favors for American society. We all share guilt here — some more than others.
When it comes to taking seriously the conscience claims of those with differing views, there is much room for improvement. The sincere conscience claims of the Greens deserve our respect and understanding, even if we ultimately disagree with them on how this complicated case should play out.