What About Religious Freedom?

Original Article

Obamacare won’t just ruin health care. It is also a cultural bulldozer. Before the law is even fully in effect, Health and Human Services bureaucrats have begun wielding their sweeping new powers to assault freedom of religion in the name of their preferred social order.

The promulgation of the free birth control rule indicates the regulatory road ahead. The government now requires every covered employer to provide health insurance that offers birth control and sterilization surgeries free of charge—even if such drugs and procedures violate the religious beliefs of the employer. Only houses of worship and monastic communities are exempt. Religious institutions have until August 1, 2013, to comply.

The lawsuits are flying. In August, the Catholic owners of Hercules Industries, a Colorado air conditioning and heating manufacturer, won a preliminary injunction against enforcement of the free birth control rule against their company (Newland v. Sebelius). The case hinges on the meaning of the Religious Freedom Restoration Act (RFRA), enacted in 1993 to remedy a Supreme Court decision allowing federal drug laws of “general applicability” to supersede Native American religious ceremonies in which peyote is used. Since many laws not aimed at stifling a specific faith can be construed to do so, the threat to religious liberty was clear. A Democratic Congress passed, and President Clinton signed, RFRA.

RFRA states that the government “shall not substantially burden a person’s exercise of religion” unless it can demonstrate that the law “is in furtherance of a compelling governmental interest.” The Newland trial judge found that forcing Hercules to pay for birth control—the company is self-insured—did indeed constitute a substantial burden on the owners’ free exercise of their Catholic faith. Since no compelling government interest was found, the judge protected the company from the rule pending trial. The Department of Justice has appealed.

Alas, in a nearly identical case, O’Brien v. U.S. Department of Health and Human Services, U.S. District Judge Carol E. Jackson reached the opposite legal conclusion. Frank O’Brien is the Catholic owner of O’Brien Industrial Holdings, LLC, a mining company in St. Louis. Demonstrating the sincerity and depth of O’Brien’s faith, a statue of the Sacred Heart of Jesus greets visitors in the company’s lobby, and the mission statement on its website affirms the intent “to make our labor pleasing to the Lord.”

Despite acknowledging “the sincerity of plaintiff’s beliefs” and “the centrality of plaintiff’s condemnation of contraception to their exercise of the Catholic religion,”
Jackson dismissed O’Brien’s case on the basis that forcing his company to buy insurance covering contraception was not a “substantial burden” on his religious freedom.

Here is the philosophical core of the ruling:

The challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives.

Excuse me, but that’s a lot like a judge telling a Jewish butcher that his freedom of religion is not violated by a regulation requiring him to carry nonkosher wares in his shop. After all, the government wouldn’t be requiring the butcher to eat nonkosher meat.

More to the point, Jackson em-braced the Department of Justice’s reasoning. If this view prevails, it will shrivel the “free exercise of religion” guaranteed by the First Amendment into mere “freedom of worship,” limiting RFRA’s protections to personal morality, domestic activities, and religious rites behind closed doors. Worse, the court ruled that O’Brien is the aggressor in the matter, that it is he who is seeking to violate the rights of his employees. “RFRA is a shield, not a sword,” Judge Jackson wrote, “it is not a means to force one’s religious practices upon others.”

How does O’Brien’s desire not to involve himself in any way with contraception force Catholicism upon his employees? He hasn’t threatened anyone’s job for not following Catholic moral teaching. He hasn’t tried to prevent any employee from using birth control. He hasn’t compelled employees to go to confession or get baptized. He merely chooses not to be complicit in what he considers sinful activities.

But that analysis presupposes that O’Brien’s religious freedom extends to his actions as an employer. It doesn’t, sayeth the Obama administration: “By definition, a secular employer does not engage in any ‘exercise of religion,’ ” the Department of Justice argued in the Newland case. In other words, according to the Obama administration, the realm of commerce is a religion-free zone.

Some might dismiss these employers’ concerns because birth control is hardly controversial outside of orthodox religious circles. But these birth control cases are stalking horses for far more intrusive violations of religious liberty to come, e.g., requiring businesses to provide free abortions to their employees. Consider the Democratic party’s 2012 platform:

The Democratic party strongly and unequivocally supports Roe v. Wade and a woman’s right to make decisions regarding her pregnancy, including a safe and legal abortion, regardless of ability to pay. [Emphasis added.]

If Democrats regain the control of Congress and the presidency they enjoyed in 2009 and 2010, look for the Affordable Care Act to be amended consistent with their platform. After that, it won’t take long for HHS to promulgate a free abortion rule along lines similar to the free birth control mandate.

And what could be done about it? According to Judge Jackson’s thinking, ensuring free access to abortion would not prevent employers from “keeping the Sabbath.” They would not be prohibited from “providing a religious upbringing” for their children or “participating in a religious ritual such as communion.” Rather, they would be barred from “forcing their religious practices” on employees by leaving employees to pay for their own terminations. In time, why shouldn’t in-vitro fertilization, assisted suicide, and sex change operations be added to the list?

If higher courts accept this radically antireligious view, the only corrective will be to amend RFRA to spell out that its protections extend to the actions of employers. In fact, why not take that step now and short circuit what could be years of litigation defending religious liberty in the public square?

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.