A Religious Freedom Election

Original Article

A recent federal trial court ruling has warmed the hearts of social conservatives and civil libertarians alike. A judge in Colorado on July 27 protected a Catholic-owned small business against the “free birth control rule”—which requires companies subject to the Affordable Care Act to offer their employees free contraception, sterilization, and other “preventive” services.

The free birth control rule does not yet apply to religious institutions. Houses of worship with faith objections are exempt permanently, and religious institutions operating in the general community do not have to comply until next year. But the regulation—which went into effect on August 1—allows no religious conscience exemptions for private businesses, meaning that all employers who come under the Affordable Care Act must comply or face federal penalties.

William Newland and his siblings, self-insuring owners of Hercules Industries, a heating, ventilation, and air conditioning manufacturing company, did not appreciate being ordered by the federal government to violate the precepts of their Catholic faith. With the help of the Alliance Defending Freedom, the family members and their business (an S corporation in Colorado) sued, claiming (in addition to constitutional arguments) that the free birth control rule violates their rights under the Religious Freedom Restoration Act (RFRA).

RFRA was enacted in 1993 in response to a Supreme Court decision that allowed federal drug laws to supersede Native American religious ceremonies that include the use of peyote. Under RFRA, once the Newlands demonstrated that the birth control regulation forces them to violate their faith, which they did, the government had the burden of proving it has a compelling state interest in so doing.

That’s usually a tough nut to crack. As a wild hypothetical to illustrate the concept, the federal government could demonstrate a compelling interest in preventing sincere neo-Aztecs from engaging in human sacrifice. But what is the compelling federal interest in forcing Catholic business owners to provide free birth control? District Court judge John L. Kane found none. Thus, in Newland v. Sebelius, he issued a preliminary injunction shielding the Newlands and their company from the rule’s objectionable provisions pending the final disposition of the case. (Since the court did not apply general constitutional principles in issuing the injunction, the ruling only applies to the plaintiffs. Any other business seeking similar protection will have to file its own lawsuit.)

In the spare reporting about the injunction, few noted the Obama administration’s audacious attempt to emasculate RFRA by claiming that because the family does business as a corporation, RFRA does not apply. “This argument relies upon two key premises,” Judge Kane noted:

First, the government asserts that the burden of providing insurance coverage is borne by Hercules [as distinguished from the Newland siblings as individuals]. Second, the government argues that as a for-profit, secular employer, Hercules cannot engage in an exercise of religion.

In other words, the Obama administration argued that upon entering commerce through a juridical entity such as a corporation, individuals forgo the religious liberty RFRA was enacted to protect.

Because the question is one of “first impression,” Judge Kane declined to decide at this early stage in the case whether a corporation has freedom of religion (as the Supreme Court has ruled it has freedom of political speech), finding instead that the Newlands were sufficiently impacted personally to justify a preliminary injunction.

But that doesn’t settle the matter. And it raises an important question: How would a court determine a corporation’s “religion” under RFRA?

Large, publicly held corporations such as Google or General Electric probably would not be found to have a particular religious belief, given that such companies are owned by millions of individual and institutional shareholders. In contrast, closely held private companies like Hercules Industries will often be able to demonstrate that their owners share a common religious belief, which should then also be attributed to the corporate entity for RFRA purposes.

By attempting to strip the owners of Hercules of their statutory protections because they incorporated their business, the Obama administration showed once again its determination to shrivel the First Amendment’s freedom to exercise one’s religion into mere “freedom of worship.” As Hercules’s attorney Matthew S. Bowman told me, “Apparently the only things a family business may legally pursue—according to the government—are profit and whatever else Washington bureaucrats decide to mandate, which in our case includes contraception, sterilization, and what many believe to be abortion-inducing drugs.”

The Newland case makes clear that the elections this fall could not be more important for religious liberty. The contrasting viewpoints of the likely judicial nominees of each potential president are obvious. But in addition, a first-term Romney Justice Department would almost surely take a view of religious liberty diametrically opposite that of a second-term Obama DOJ. Romney—who has praised the Newland injunction—would surely scrap the Obama administration’s pinched “freedom of worship” in favor of the Constitution’s “free exercise” of religion.

But it isn’t just the presidency. The makeup of Congress is also crucial. If a court ever rules that juridical entities are not covered by RFRA, Congress will have to amend the law to ensure that religious employers retain the freedom to conduct their businesses in conformity with their religious convictions. Under a Majority Leader Reid and a House speaker Pelosi, good luck with that!

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.