Hobby Lobby Wins Religious Freedom Victory

Supreme_Court_US_2010*Co-authored with Trey Dimsdale

In the highly anticipated decision of Burwell v. Hobby Lobby, the Supreme Court issued a victory to closely held for-profit corporations on the issue of religious liberty. While the decision was not as sweeping as some may have wanted—or as Justice Ginsburg claimed in her dissent—the Court’s decision upheld the idea that Americans need not check their right to religious liberty at the door when they enter the business world.

At issue for the Green family, owners of Hobby Lobby and Mardel, and the Hahn family, owners of Conestoga Wood Specialties, was the fact that the government compelled them to violate their deeply held religious beliefs by providing abortifacient birth control drugs and devices to their employees as part of their employer-provided healthcare plans. The Greens and Hahns specifically believe that life begins at conception and any measure that extinguishes the life of a human embryo is a violation of that belief. As such, the Health and Human Services birth control mandate would cause them to violate their consciences.

One of the key issues before the Court was whether or not for-profit corporations fit the legal definition of a person for the sake of exercising religious liberty. In the summary of their decision, the majority of the Court noted, “Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”

In a further explanation of this protection, the Court noted the Third Circuit’s argument that for-profit corporations “do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” In response to this conclusion, the Court stated, “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”

In making these statements, the Supreme Court tied the actions of closely held for-profit corporations directly to the actions and beliefs of their owners. Specifically, the Hahns and Greens can exercise their belief that life begins at conception through excluding certain types of birth control from their insurance plans.

The heart of this decision is in the Court’s determination that a corporation is a “person” under the meaning of the Religious Freedom and Restoration Act (RFRA). RFRA establishes a very specific test which federal courts must apply in cases that deal with government action that infringes on a person’s free exercise of religion. HHS argued, and at least one appellate court agreed, that corporations are not “persons” capable of exercising religion. In that case, the RFRA would not apply to the issue before the Court. The Supreme Court, however, held that (in at least the case of closely held corporations), corporations areentitled to the protections offered by RFRA. The fact that corporations are not capable of participating in religious activities is irrelevant. In short, the Supreme Court recognizes that Hobby Lobby, Mardel, and Conestoga Wood Specialties are legitimate vehicles for the exercise and expression of their owners’ religious convictions.

This is a clear victory for business owners who believe that life begins at conception and that the HHS mandate violates such a belief. In keeping with the First Amendment and RFRA, owners of closely held corporations can exclude abortifacient birth control measures from their healthcare plans.

A second issue presented in the Court’s decision is that the government cannot determine certain religious beliefs are invalid because they do not like them. The Court argues, “Arrogating the authority to provide a binding national answer to this religious and philosophical question [i.e., that providing these birth control measures enables the commission of an immoral act], HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.” Thus, HHS claimed it had the right to determine if the Greens and Hahns held a valid religious belief. The Court clearly held that is not the job of the government. The majority went on to say, “Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function . . . in this context is to determine’ whether the line drawn reflects ‘an honest conviction,’ . . . and there is no dispute that it does.”

If the government had its way, the Court argued that it could have excluded religious owners from the business world. According to the government’s argument, no insurance coverage mandate would have violated the RFRA, including third-trimester abortions and assisted suicide. The Court responded, “The owners of many closely held corporations could not in good conscience provide such coverage, and thus the HHS would effectively exclude these people from full participation in the economic life of the Nation.” Thankfully, the Court disagreed.

What does this mean for Christian business owners? Specifically related to the HHS mandate, owners of closely held corporations cannot be compelled to provide abortion-inducing drugs and devices as part of their healthcare plans. The Court’s decision in Burwell v. Hobby Lobby is only applicable to closely held corporations. These are businesses which are organized under state law as corporations but are owned by a small number of individual shareholders. The companies involved in this case are all closely held, family-owned businesses. This is different from publicly held corporations that may have any number of shareholders who have invested money in the business.

Many people in our churches are likely to be part of such businesses. While they may not always have the number of employees that require mandatory health insurance coverage, there is potential that their businesses could grow to that point just as Hobby Lobby, Mardel, and Conestoga Wood Specialties.

This case could also foreshadow how the Court may decide other related cases, such as the cases involving the Little Sisters of the Poor and religious educational institutions. Subsequent Supreme Court decisions could extend similar religious freedom protections and exemptions to other types of organizations that Burwell v. Hobby Lobby does not.

We can rejoice in today’s victory for the Greens and Hahns, but there is still much work to be done in protecting religious liberty for people of faith in the marketplace.

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Trey Dimsdale, J.D., serves as Research Fellow in Law and Public Policy for the Land Center for Cultural Engagement at Southwestern Baptist Theological Seminary in Fort Worth, Texas. He is also one of my Ph.D. students in ethics.

Are Corporations People Too?: Hobby Lobby and Religious Liberty

Supreme_Court_US_2010Who would have ever imagined that a craft store chain owned by a Christian family would be at the center of a Supreme Court case about sexuality, abortifacient drugs, the role of corporations, and religious liberty? Oral arguments were heard today in the Supreme Court case Sebelius v. Hobby Lobby. The central point of the case is whether or not the Green family, owners of Hobby Lobby and Mardel Christian bookstores, has the right to exercise their religious freedom in opting out of the Health and Human Services (HHS) mandate requiring employer-provided health plans to offer emergency birth control drugs at no charge to their employees. The Greens have objected on religious grounds that such emergency birth control options are tantamount to abortion and that providing abortion-inducing drugs is a violation of their deeply held religious beliefs.

Trying to predict what the Supreme Court will decide is an exercise in futility, so I will not go down that road. However, I do want to highlight a few interesting notes from today’s oral arguments.

The first is not all that surprising (and possibly not all that interesting)—the high court appears divided. From the best one can tell from the questioning, the Supreme Court is split 4-4 with Ginsburg, Breyer, Kagan, and Sotomayor apparently siding with the government and Roberts, Thomas, Scalia, and Alito leaning towards Hobby Lobby. This leaves Justice Anthony Kennedy as the deciding vote in an otherwise divided Court. This is familiar territory for the current version of the Supreme Court.

The second item of note is that the role of a corporation seems to be a big question. Some of the liberal justices seemed to imply that corporations should simply be able to pick up the tab for the healthcare expenses or fees for not providing healthcare with no impact on the business or the economy. They did not seem to take into account that these healthcare costs have to be paid by someone and that the costs would most likely be passed along to the customer. Justices Kagan and Sotomayor also pressed Paul Clement, the attorney arguing for Hobby Lobby, about whether corporations could opt out of other healthcare options for their employees. Lyle Denniston reports that they “suggested that if corporations gain an exemption from having to provide birth-control services for their female employees, then the next complaint would be about vaccinations, blood transfusions, and a whole host of other medical and non-medical services that a company or its owners might find religiously objectionable.”

On the other hand, Justice Alito pushed back against Solicitor General Donald Verrilli regarding the purpose of corporations. He asked the Solicitor General if the only purpose of corporations was to “maximize profits.” If the object is only to maximize profits, then corporations would have no other rights. However, if corporations serve other purposes, then they might have the right to protection under the free exercise of religion clause in the First Amendment.

The third item is the most interesting development in my opinion. It relates to the rights of a corporation to make a claim regarding discrimination. The government argued that for-profit corporations like Hobby Lobby have no standing to file a claim against the government based on religious discrimination. On the surface this seems to make sense because corporations are not churches, nor are they individuals with religious beliefs. However, the government has already held that corporations can file claims based on racial discrimination. In the same sense, corporations are not individuals of a particular race or ethnicity. The racial discrimination claims have typically been based on the race and ethnicity of the owners.

Applying the same standard to the religious freedom aspect of the Hobby Lobby case, it would appear that the Green family’s deeply held religious beliefs (and clear articulation of those beliefs in company documents) would provide the corporation with the same protections as those guaranteed to them as individuals. This argument could prove to be central in the upcoming decision of the Court.

Once again, we will be left to wait for months until hearing the decision of the Supreme Court that will most likely come in June. Until then, it is futile to speculate what the Court will decide. However, there is one thing that we can do. We can pray for the justices of the Supreme Court that God would grant them wisdom in judging these matters. We should pray for godly wisdom that they would rule according to God’s will. We should pray that they would value life in the way that God values life—seeing those in the womb as no different than a full-grown adult (Psalm 139:13–16).

I urge you to join me in prayer for John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. The future of religious liberty in the United States is in their hands.
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Lyle Denniston, “Argument recap: One hearing, two dramas,” SCOTUSblog, March 25, 2014.

Derrick Morgan, Hans von Spakovsky, and Elizabeth Slattery, “How the Supreme Court Justices Reacted to Today’s Hobby Lobby Arguments,” The Foundry, March 25, 2014.

Ilya Shapiro, “Is There No Alternative to Forcing People to Violate Their Religious Beliefs?” Cato Institute, March 25, 2014.

Radical Reformation and Religious Liberty

Today I had the privilege of speaking in chapel at Southwestern Baptist Theological Seminary for our annual Radical Reformation Day chapel. Dr. Patterson had asked me to speak on the issue of religious liberty. You can watch or listen to the entire message here, but I also want to provide you with some highlights.

Historically, the Anabaptists fought for religious liberty all the way to the point of death. They believed that the church and state should not be wed in a way that the state enforces doctrinal purity by punishing those who believe or promote false doctrine. The Anabaptists believed that the state’s role was limited to protecting peace and order in society. Since the state could not coerce beliefs, then the Anabaptists also believed that conversion cam on the basis of persuasion through the Word of God rather than at the point of the sword. Finally, the Anabaptists taught the free exercise of religion in that heathens and heretics were to be allowed to continue in their unbelief. No one had the right to coerce them to change.

There is much more to discuss, but this gives you the historical highlights. I hope you enjoy the message as much as I enjoyed preparing and delivering it.

Radical Reformation and Religious Liberty

Government, Religious Liberty, and Women’s Health

There is an excellent article posted today on Public Discourse by Helen Alvare addressing the issues of government, religious liberty, and women’s health. Here are some of the highlights.

On the issue of the administration’s campaign targeting women:

The result is an administration—led by men, but fronted by women—blatantly in favor of the view that to be “for women” (and to be super cool), you should support casual sex and the free contraception that facilitates it. The Obama campaign’s real message about the HHS mandate translates as follows: If you object to coercing religious institutions into sponsoring free contraception, you are no friend to women.

On the threat to religious liberty:

Any American citizen or institution that visibly opposes this powerful alliance might realistically worry about its future. This is new for Christians in America. In decades past, only the most extremist abortion interest groups—e.g., Planned Parenthood and the National Abortion Rights Action League—visibly denounced the beliefs and practices of Christian churches regarding human sexuality, marriage, and family. But today, these groups command the prime-time podium at the Democratic National Convention, and count the president of the United States as their closest political ally.

On the challenge for Christians:

Instead, for the good of women and the good of society, Christians must engage in a hard conversation: what does women’s freedom truly include? Christian citizens, Catholics in particular, must explain why their witness on contraception contributes to, and doesn’t derogate, women’s long-term flourishing. These conversations must certainly deal with the world as it is—culturally, politically—but can never forget to speak of the world as it ought to be, the world parents hope to leave to their daughters and sons.

Christian churches need to be frank about what they are proposing concerning sex, parenting, and marriage. They shouldn’t hide the ball; that rightly infuriates people. And they should especially remember those people who often slip through the cracks, who are forgotten or ignored by the alliance of Planned Parenthood and the federal government: our poorest and least educated fellow citizens who suffer the most from the loss of a healthy marriage culture.

I’d like to encourage you to read the entire article. It appears that it will also include two more follow-up pieces in the days to come. You can find the article here.

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Helen Alvare, “Planned Parenthood and the Government v. Religious Liberty and Women’s Wellbeing,” Public Discourse, December 4, 2012.

Statement on Release of Iranian Pastor

The Research Institute of the Ethics and Religious Liberty Commission (Southern Baptist Convention) has released a statement on the release of Iranian pastor, Youcef Nadarkhani. Pastor Nadarkhani was imprisoned in October 2009 for apostasy and proselytism. Essentially, he is a Christian who was sharing his faith, which is illegal in Iran. The statement below addresses the issue of religious freedom and calls on the oppressive Iranian regime to honor Pastor Nadarkhani’s right to freedom of religion and freedom of conscience.

The text of the statement follows:

Pastor Youcef Nadarkhani was imprisoned by the Iranian authorities and charged with apostasy and proselytism on October 12, 2009. Over a period of nearly three years, he endured torture and was under the constant threat of death. His wife was imprisoned and his children threatened. This was all in an effort to force him to recant his Christian faith.

On September 8, 2012, the charges of apostasy were withdrawn and Pastor Nadarkhani was convicted of evangelizing Muslims and sentenced to three years in prison. He was then released from prison since he had already been held two years and 11 months.

We rejoice with Pastor Nadarkhani and his family over his release. Nevertheless, we are outraged that Iran has subjected him to such barbaric treatment. Iran’s behavior during this entire period violated one of the most basic of human rights—the freedom of conscience.

This right is granted to humanity by God. It is also affirmed in the United Nations’ Universal Declaration of Human Rights, to which Iran was an original signatory: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

In protest of Iran’s inhumane treatment of Pastor Nadarkhani and countless other prisoners of conscience in Iran and around the world, we reaffirm and celebrate the freedom of conscience entrusted to humanity by God the sovereign Creator, and we condemn specifically the horrific behavior of Iran toward its citizens who choose a faith other than Islam.

We call for the following:

  • that the Iranian authorities publicly apologize to Pastor Nadarkhani for their flagrant abuse of his God-given right to freedom of thought, conscience, and religion, and for the humiliation, loss of honor, pain, suffering, and loss of livelihood to which he and his family were subjected for nearly three years,
  • that every nation honor the God-given freedom of thought, conscience, and religion, and release every prisoner whose only offense relates to these.

We further commit ourselves to pray and work for the release of every prisoner of conscience and to do all that we can to promote and protect freedom of conscience here and around the world.

Finally, in solidarity with Pastor Nadarkhani we invite all people to receive Jesus Christ as their Lord and Savior for the complete and everlasting forgiveness of their sin and eternal peace with God.

I am honored to be one of the Research Fellows of the ERLC who helped to craft this statement. Much of the credit should go to Dr. Barrett Duke for his initial work in drafting the document. You can join me and others who have already signed this document by clicking here and adding your name.

Good Reading: Robert George on Marriage and Religious Liberty

Robert George, McCormick Professor of Jurisprudence at Princeton University, offers an insightful look at the tension between religious liberty and the redefinition of marriage. Here are a couple of highlights:

It was only yesterday, was it not, that we were being assured that the redefinition of marriage to include same-sex partnerships would have no impact on persons and institutions that hold to the traditional view of marriage as a conjugal union? Such persons and institutions would simply be untouched by the change. It won’t affect your marriage or your life, we were told, if the law recognizes Henry and Herman or Sally and Sheila as “married.”

Those offering these assurances were also claiming that the redefinition of marriage would have no impact on the public understanding of marriage as a monogamous and sexually exclusive partnership. No one, they insisted, wanted to alter those traditional marital norms. On the contrary, the redefinition of marriage would promote and spread those norms more broadly.

George then shows how those “assurances” were false and questions why those supporting traditional marriage ever bought into such assurances. He continues:

I must say, though, that I still can’t fathom why anybody believed any of it—even then. The whole argument was and is that the idea of marriage as the union of husband and wife lacks a rational basis and amounts to nothing more than “bigotry.” Therefore, no reasonable person of goodwill can dissent from the liberal position on sex and marriage, any more than a reasonable person of goodwill could support racial segregation and subordination. And this, because marriage, according to the redefiners, consists principally of the emotional union of people committed to mutual affection and care. Any distinctions beyond this one they condemn as baseless.

Since most liberals and even some conservatives, it seems, apparently have no understanding at all of the conjugal conception of marriage as a one-flesh union—not even enough of a grasp to consciously consider and reject it—they uncritically conceive marriage as sexual-romantic domestic partnership, as if it just couldn’t possibly be anything else. This is despite the fact that the conjugal conception has historically been embodied in our marriage laws, and explains their content (not just the requirement of spousal sexual complementarity, but also rules concerning consummation and annulability, norms of monogamy and sexual exclusivity, and the pledge of permanence of commitment) in ways that the sexual-romantic domestic partnership conception simply cannot. Still, having adopted the sexual-romantic domestic partnership idea, and seeing no alternative possible conception of marriage, they assume—and it is just that, an assumption, and a gratuitous one—that no actual reason exists for regarding sexual reproductive complementarity as integral to marriage. After all, two men or two women can have a romantic interest in each other, live together in a sexual partnership, care for each other, and so forth. So why can’t they be married? Those who think otherwise, having no rational basis, discriminate invidiously. By the same token, if two men or two women can be married, why can’t three or more people, irrespective of sex, in polyamorous “triads,” “quadrads,” etc.? Since no reason supports the idea of marriage as a male-female union or a partnership of two persons and not more, the motive of those insisting on these other “traditional” norms must also be a dark and irrational one.

This article is worth your time, especially in light of the current public discussion of Chick-fil-a’s support of traditional marriage. George lends credence to the Cathy family’s stance but explains why they are taking a beating in the media and social “elite.”

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Robert P. George, “Marriage, Religious Liberty, and the ‘Grand Bargain,'” The Public Discourse, July 19, 2012.

Can an Unjust Law Be a Law at All?: The Contraceptive Mandate

I have previously written about the Health and Human Services guideline to the Affordable Care Act (aka, ObamaCare) that will require religious institutions to provide all FDA-approved contraceptives to their employees at no charge through their group health insurance plans. I believe that such a mandate violates religious liberty and freedom of conscience that is guaranteed protection under the First Amendment of the Constitution.

Today the United States Senate voted to table the Blunt Amendment which would have protected those who object to this new insurance mandate. The vote was predictably along party lines with all but one Republican favoring the amendment and all but three Democrats opposing the amendment.

As this new mandate proceeds to take the form of law, we need to ask the questions:

Is this law unjust?

Can an unjust law be a law at all?

In relation to the justice of this law, I have previously argued that it violates the freedom of religion granted by the First Amendment. In addition, I believe this law is unjust because it violates God’s eternal law of protection of innocent life. We see in Genesis 1:27 that human beings are created in the image of God. Thus, the inherent value of humans begins at conception. Any attempt to end life after conception (e.g., Plan B, Ella, abortion, etc.) is a violation of the eternal law of God.

Thomas Aquinas gives us a good historical perspective from which to evaluate the justice of human law. Aquinas writes:

Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived. . . . On the other hand laws may be unjust in two ways: first, by being contrary to human good . . . either in respect of the end . . . ; or in respect to the author, as when a man makes a law that goes beyond the power committed to him;—or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. . . . Secondly, laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing idolatry, or to anything contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, we ought to obey God rather than men.

If we look at this mandate through a Thomistic lens, the contraception requirement is unjust on both levels. It is contrary to the human good because it goes beyond the power granted to the federal government and imposes an unequal burden on society. The Constitution does not grant the federal government the power to require purchase of health insurance nor to tell health insurance plans what must be offered and for how much money. Those with religious convictions against such birth control are burdened with violating their consciences. If no such mandate existed, those with no religious conviction against contraception could buy it on the open market. Those with convictions against it would not be unduly burdened.

Second, this mandate is opposed to the divine good because it violates the law of God to protect innocent human life. In Psalm 139:13–16, we read that God forms children in the womb, and He has planned our days before we are ever born. God is intimately involved in the creation of life from the very moment of conception. God values human life and calls upon us to protect it (Exodus 20:13).

That leads to the second question: Can an unjust law be a law at all? Turning to Aquinas again, he answers with a resounding “No!” Speaking of unjust laws, Aquinas writes, “The like are acts of violence rather than laws; because, as Augustine says, a law that is not just, seems to be no law at all.”

Believing this new mandate to be unjust and opposed to both the common good and divine good, I applaud Sen. Roy Blunt (R-MO) and his colleagues for attempting to protect religious liberty. Those 51 senators who voted to table the amendment, effectively killing it, should recognize they have violated the sacred trust of their office to govern justly for the American people. We should strive for just laws enacted by our government and condemn unjust laws that are in fact no law at all.

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Tom Cohen and Dan Merica, “Senate kills controversial ‘conscience’ amendment,” CNN, March 1, 2012.

Thomas Aquinas, Summa Theologica, I–II.96.4.

My previous articles on this issue include: ObamaCare and the First Amendment and To Mr. Obama, From a Conscientious Objector.