What’s at stake with SCOTUS and Hobby Lobby

The Supreme Court of the United States is now deliberating on something far more important than exempting a business from some elements of the Affordable Care Act. Hobby Lobby and their owners face a choice between fines that will destroy their business and a moral compromise founder David Green has already declared unacceptable. On one side advocates for Hobby Lobby say that forcing the company to provide abortifacient coverage for employees will violate the conscience of the people that own this business. The other viewpoint is that women’s healthcare will be compromised if this company or any other company is allowed to dodge the requirement to fund all of 20 different contraceptive drugs and devices specified in the ACA. Shriller voices say that a decision in favor of Hobby Lobby would be comparable to the “pro-discrimination” law recently vetoed by Arizona Governor Jan Brewer. That law, by the way, would have allowed businesses to decline participation in ceremonies and celebrations related to causes the owners find odious, as with a photographer or caterer who prefers to decline participation in a same-sex “wedding.” This really is not a disagreement between those who don’t believe in religious freedom and those who hate women–discrimination as some have expressed it.

It is a disagreement over the meaning of religious liberty. Increasingly, the popular and political notion of religious freedom is limited to private, very private, expressions of religious devotion—what you do within the walls of your church or home. A Bible on your desk at work, a cross necklace, Christmas songs with an actual Christmas theme—all these have been challenged more than once in our public institutions. In a well-known Texas example, an Air Force noncommissioned officer was canned for refusing to even say what his religious beliefs about marriage might be. This will have implications for a variety of subjects, nearly any subject on which we might be at odds with the culture.

A win for Hobby Lobby would not be a loss for women’s health. Of the 20 different contraceptives covered by ACA, only four are at issue with the Green family. These four can arguably cause early abortions. In fact, according Hobby Lobby’s website, 93 percent of women are covered by the 16 devices and drugs to which the Green family has no convictional objections. Hobby Lobby’s owners have no convictional disagreement with contraceptives, but rather with drugs and devices that prevent the live birth of human beings already conceived. Even so, Hobby Lobby employees can obtain for themselves these other four remedies without running afoul of their bosses. Using images of the employer intervening between a woman and her health is really overblown. There is also the option, rejected by the Greens, of giving no healthcare to employees and paying a fine approximately six percent as great ($26 million per year compared with $1.3 million per day) as the one they face for offering a plan deemed non-compliant by Health and Human Services. If they really did not care for their employees, that’s the way to go.

The ramifications of this Supreme Court decision are significant. A decision one way will accelerate the erosion and disregard toward religious liberty that we have all observed in recent years. A decision the other way will be a precedent that supports the Religious Freedom Restoration Act of 1993. RFRA put the burden on the government to show “compelling state interest” before abridging the free exercise of religion, and even then abridging that exercise as minimally as possible. The court may be deciding if that standard is constitutional. It is not unreasonable to suggest that the administration is now treating RFRA the same way they formerly treated the Defense of Marriage Act—disregarding it in hopes that the court will overturn or weaken it. They are at least using a pretty generous interpretation of “compelling state interest.”

During a recent forum at Georgetown University, Harvard Law Professor Alan Dershowitz, while terming the government’s case in Sebelious v. Hobby Lobby “trivial and silly,” said that Christians are losing the cultural battle because they haven’t done a good job of convincing people that religion is relevant. Obviously that is a discussion we’ve had within the body for 30 years; but Dershowitz is mistaken to think that secularists have no dog in this fight. An atheist’s or Buddhist’s beliefs are in no less danger than my own. While I don’t expect a Christian majority to arise and persecute skeptics in America, a religious majority of some sort will always be present and it will only grant full liberty to minority beliefs if required by law. It is foolish for anyone to assume he will always be in the majority. That’s why the U.S. Constitution should be more durable than opinion polls. That’s why presidents should be required to obey, even enforce, its inconvenient precepts. That’s why we must all pray that the Supreme Court will uphold the most basic freedoms God granted to men.