When I was a lawyer, I was taught that she who successfully frames the question wins the case. Hobby Lobby (and Conestoga and Mardel) successfully framed the question as being one of the owner’s religious freedom. And everyone is for religious freedom – right? So, as a minister, I should celebrate the Hobby Lobby case. But instead, it sends chills down my spiritual spine.
The problem, and the reason so many religious organizations – including many conservative religious organizations, have opposed Hobby Lobby on this, including filing amicus briefs, is that from our point of view this is not just a question of the religious freedom of the owners of these corporations – the questions is the religious freedom of the corporation against the religious freedom of it’s employees. And the Court chose to protect the religious rights of a small minority of business owners with power over the rights of tens of thousands of others who work for them.
And that precedent is very, very troubling – from a religious point of view.
It needs to be said that none of these for-profit corporations are churches or other religious organizations, nor are they affiliated non-profit service organizations that are mission arms of churches or groups of churches. Most (though not all) people who work for churches and other religious organizations share a common religious point of view. And the actions taken by a religious organization reflects the theology of that religion, and represent it to the outside world. So I do think that the government requiring a religious organization to take action contrary to the tenets of that faith burdens the free exercise of religion.
But that is not what is going on here. These are for-profit corporations. They are not religious organizations. Period. It cannot be assumed that the people who take a job cutting fabric at Hobby Lobby share the religious beliefs of the owners of that corporation.
The Court’s opinion limits its ruling to “closely held” corporations – which makes it seem less burdensome. But let’s explore what that really means:
The Court itself doesn’t define “closely held” – so the definition will vary from state to state. So apparently which corporations have their religious beliefs protected may vary from state to state. That in itself is problematic from a religious point of view. If, in fact, we think the religious rights of for-profit corporations should be protected, that protection should apply nationwide. Setting aside the issue of whether for-profit corporations can really have religious beliefs at all, I do not like a precedent that says that state-definitions can determine whose religious rights are protected.
Business sources say that while this can differ from state to state, generally speaking we are talking about corporations where more than 50% of the stock of the corporation is owned (directly or indirectly) by no more than 5 people. This means several potentially troubling things. First, we are talking about the religious views of a very small number of people – no more than 5. But they are the people with power – they control the corporation. So the religious views of this small number of people trump the views of the other owners of the corporation – who because it is not a religious organization may not share the views of the controlling minority. The religious views of this small number of people – no more than 5 – also trump the religious views of the employees of the corporation – which apparently number in the tens of thousands for these three companies.
The basic premise of this case is that people can have a “sincere religious belief” (more about that later) about contraception. The owners of Hobby Lobby have a sincere religious belief that using contraception is wrong or sinful. But others, many of whom may work for that company, may have the sincere religious belief that it is not only not sinful, but in some cases necessary to protect something sacred – the health and wellbeing of the woman, and the later health and wellbeing of any child conceived. But this case takes absolutely no account of the religious rights of the employees of the company. This is also something rarely mentioned in the media. All the discussion centers on the health benefits of the employees, and their reproductive rights – without mentioning that this may be for the employees a matter or religious belief – as it is for me.
I believe that my faith has something to say about protecting the health and wellbeing of all people, as all people are sacred children of God. In our culture, one of the ways we protect that health and wellbeing is by using medication. Contraception medications (including IUD’s that include hormones) are used not only for prevention of pregnancy, but to treat a number of medical conditions. For example, as a teenager and young woman I took birth control pills to address the effects of endometriosis, and though I am now past menopause, I use an IUD to address severe uterine bleeding. I know others who take birth control pills to deal with ovarian cysts. But if coverage is not provided, because of the religious beliefs of the owners of the company, this would not be covered either – severely impacting the health and wellbeing of a woman who needs them.
Note that although this case only dealt with 4 specific types of contraception that the owners believed (perhaps wrongly according to medical sources) caused a woman to abort a fertilized egg, there is nothing in the opinion that would limit it’s reasoning to those 4, or that type of contraception. There are cases in the pipeline involving challenges from corporations to providing coverage for all types of contraception on religious grounds.
Now let’s just look at these medications as contraceptives – one of the things contraceptives do is prevent unwanted pregnancies. And, studies show, their use lowers the rate of abortion. I am personally opposed to abortion on faith grounds – though I am pro-choice. So if providing contraceptives is one of the best ways to prevent unwanted pregnancies and therefore abortions, I am for providing them on religious grounds. If a minority holder of a corporation, or an employee of these companies has a sincere religious belief that abortion is a wrong, then providing or taking contraceptives may be a way of exercising that religious belief – to prevent a pregnancy that might need to be aborted (for a variety of reasons). Those religious beliefs are not considered in this decision.
But I can hear the response now – those women can just say “no.” No sex, no pregnancy; there is an alternative way for them to exercise that religious belief. That has been the subtext of the fight against contraception for years – it’s really a way of punishing a woman for having sexual intercourse. If she gets pregnant, it’s her fault, and a judgment on her. But again, that would be an imposition of a religious belief and judgment onto the woman. It also ignores the reality that many women who are married take birth control for family planning purposes, or – and this is important – because pregnancy would be dangerous for them or because of genetic issues might result in a child with severe problems – bringing suffering to the child and family. Prevention of suffering like that, when possible, may also be a “sincere religious belief.”
What we are looking at with this case is religious tyrrany – imposition of religious beliefs of a small number of people on others over whom they have power. That is something to oppose in any age. And with this opinion, our government is sanctioning it.
It’s worth noting that this ruling was based on a statute: the Religious Freedom Restoration Act of 1993 (RFRA). That law was passed in response to government prosecution of individuals who were exercising their religious beliefs by using a banned substance in religious rituals – Native Americans who were using peyote in their religious ceremonies as they had for generations. It was intended to address religious tyrrany – the government’s placing a burden on an exercise of religion. The law had to be passed because the Supreme Court upheld the government’s right to prosecute those people against a challenge based on the First Amendment Free Exercise Clause. So according to the Supreme Court in the 1990s, it was OK for the government to prosecute those two men from the free exercise of religion, because there was a statute making that substance illegal. So the Court gave priority to law over religion. RFRA was passed in response to that, to provide greater protection for religious exercise than the Constitution.
But – and this is a big but – the use of peyote in religious ceremonies did not negatively impact anyone else. There were no other competing religious beliefs at stake to be protected. If the Native Americans wanted to negatively impact their own health with peyote – that is up to them. They were not forcing anyone else to take peyote.
The opposite is true here. The free exercise of the religious beliefs of the owners of Hobby Lobby et al. is being imposed on others – on their employees – and because this can be a family issue – their whole families in some instances. So the government here has weighed in and protected the religious rights of some – over and against the religious rights of others; the Supreme Court has sanctioned giving preference to some religious views over others. It’s not law over religious belief – it’s one religious belief over others, giving one priority. As a person of faith, and religious leader, that worries me – a lot. RFRA has become a weapon that can be used against religious people. Scary stuff.
Which brings me to another concern about this case: the phrase “sincere religious beliefs,” or elsewhere in the opinion “sincere Christian belief.” Set aside, for a moment, the problem with lumping all Christians together, as if all Christians must, of course, agree with the Hobby Lobby owners. Let’s focus on the word “sincere.” The Court provides no metric, no definition, no way to understand that phrase. I do not want the courts judging whether my, or anyone else’s, religious beliefs are “sincere.” How would they even do that? Courts deal in facts, not belief. One would think they could only look at external evidence of whether the belief was “sincere,” like how long that belief has been held or expressed. As people of faith, with experience in matters of faith, we know that religious beliefs can change in an instant – we have words for that: “epiphany,” “being born again,” “conversion,” “opening.”
The only other option is for the court to defer, always, to what someone says about their belief. If they use the magic words “sincere belief” – or something similar, that’s all that matters. With that, someone could have a sincere belief that red is blue and the court would have to take it as true for the purposes of the case. Both options are bad, from a religious point of view. People of faith do not want an instrument of the government, the courts, determining which religious beliefs are “valid” or “sincere” and which are not. That way lies true religious tyrrany, and this case cracks opens the door for that. Nor do we want anyone with religious beliefs contrary to our own to impose those beliefs on us or those who share our beliefs. Everyone is entitled to their beliefs, no question, they just should not not be able to impose them on others. And even more important, the government should not be sanctioning that. This opinion opens the door for that as well.
Because make no mistake, while the Court says this ruling wouldn’t apply to other medical things – like blood transfusions, or medical care at all, both of which are opposed by established religious groups – there is no reasoning in the opinion that distinguishes contraception from other types of medical procedures or medications. And with the Court willing to make new law here to support the religious beliefs of a small number of people, there is no reason to think they would balk at overturning existing precedent or making new law on the exercise of religious beliefs in other contexts – like discrimination on religious grounds, or the exercise of religion in other contexts.
And while disapproval of the ACA (“Obamacase”) may have fueled the filing of this case, it’s reach is far, far broader in terms of what an employer may be able to do in the name of his or her religious freedom, to stomp on you and your religious freedom. Whether you like the ACA or hate it as a matter of politics or public policy, this case is a problem from a religious point of view. Today it may be your religious belief that is given priority – but that can change.
Lastly, it is important to understand that this is not about just Hobby Lobby (and Conestoga and Mardel). Business sources say that about 90% of the for-profit corporations in the US would probably quality as “closely held.” The impact of this case over time cannot be overestimated. As we become more polarized not only politically but religiously, this case provides a dangerous weapon to impose religious beliefs on others. The religious "freedom" supported here isn't free, it's bought and paid for by the loss of the religious freedom of others. Tomorrow it could be yours.
There is a reason we have the First Amendment Free Exercise and Establishment Clauses in the Constitution – and you are looking at it. God help us all.
