In a legal argument formally presented in federal court in the case of Hobby Lobby v. Kathleen Sebelius, the Obama administration is claiming that the First Amendment—which expressly denies the government the authority to prohibit the “free exercise” of religion—nonetheless allows it to force Christians to directly violate their religious beliefs even on a matter that involves the life and death of innocent human beings.
Because federal judges—including Supreme Court Justice Sonia Sotomayor—have refused to grant an injunction protecting the owners of Hobby Lobby from being forced to act against their Christian faith, those owners will be subject to federal fines of up to $1.3 million per day starting Tuesday for refusing to include abortion-inducing drugs in their employee health plan.
The Obama administration is making a two-fold argument for why it can force Christians to act against their faith in complying with the regulation it has issued under the Obamacare law that requires virtually all health care plans to cover, without co-pay, sterilizations, contraceptives, and abortion-inducing drugs.
The first argument the administration makes against the owners of Hobby Lobby is that Americans lose their First Amendment right to freely exercise their religion when they form a corporation and engage in commerce. A person’s Christianity, the administration argues, cannot be carried out through activities he engages in through an incorporated business.
“Hobby Lobby is a for-profit, secular employer, and a secular entity by definition does not exercise religion,” said Acting Assistant Attorney General Stuart Delery in a filing submitted in the U.S. District Court for the Western District of Oklahoma.
“Because Hobby Lobby is a secular employer, it is not entitled to the protections of the Free Exercise Clause or RFRA [the Religious Freedom Restoration Act],” Delery told the court on behalf of the administration. “This is because, although the First Amendment freedoms of speech and association are ‘right[s] enjoyed by religious and secular groups alike,’ the Free Exercise Clause ‘gives special solicitude to the rights of religious organizations.’”
In keeping with Delery’s argument, the Washington Post, as a corporation, can use its First Amendment-protected freedom of speech to write editorials in support of the Obama administration imposing its contraception mandate on businesses like Hobby Lobby. But the members of the family that created and owns Hobby Lobby, because they formed Hobby Lobby as a corporation, have no First Amendment freedom of religion that protects them from being forced by the government to act against their religious beliefs in providing abortion-inducing drugs.
The second argument the administration makes to justify forcing Christians to act against their faith is more sweeping. Here the administration argues it can force a person to act against his religion so long as the coercion is done under the authority of a law that is neutral and generally applicable—in other words, as long as the law was not written specifically to persecute Christians as Christians, the government can use that law to persecute Christians.
Hobby Lobby is a family business. David Green created it in his garage in Oklahoma City in 1972. He and his wife, Barbara, and their three children—Steve, Mart and Darsee Green Lett– have grown the business to where it now operates 500 stores in 41 states. David Green is Hobby Lobby’s CEO; Steve Green is its president; Mart Green is vice CEO; and Darsee Lett is vice president. Mart Green is also CEO of the privately owned Mardel chain of Christian bookstores, which operates 35 stores in 7 states. Through Hobby Lobby, the Greens have created more than 13,000 jobs. Mardel has created 372 jobs.
The Greens, who are Evangelical Christians, do not suspend their religious beliefs while running their businesses. Instead, they strive to run them fully in accordance with their Christian beliefs. They are unanimous in stating that they have always “sought to run Hobby Lobby in harmony with God’s laws and in a manner which brings glory to God.” They do not have two sets of morals—one for when they are at church or at home and another for when they are working on their businesses. They have only one set of morals—that they strive to follow at work or any other activity. For example, they close their business on Sundays, so their employees can spend that day with their families, and they pay their full-time workers a minimum hourly wage of $13, which is far exceeds the federal minimum wage.
They also provide their employees with a generous self-insured health care plan, and they even operate an on-site, cost-free health clinic at their corporate headquarters. But, guided by their Christian faith, the Greens believe that human life begins at conception and that aborting on unborn life is wrong. In keeping with this, they do not cover in their employee health plan abortions, abortion-inducing drugs or IUDs that prevent implantation of an embryo.
Unlike Catholics, the Greens do not believe that contraception and sterilization are morally wrong.
In September, the Greens, Hobby Lobby and Mardel bookstores sued Health and Human Services Secretary Kathleen Sebelius, Labor Secretary Hilda Solis, Treasury Secretary Timothy Geithner and the departments of Health Human Service, Labor and Treasury. Their complaint said that the Obamacare contraception mandate violates their First Amendment right to the free exercise of religion because supporting abortion or counseling for abortion is contrary to their religious faith.
As the mandate now stands, the Greens must begin complying with it on Jan. 1. On Nov. 11, U.S. District Judge Joe Heaton refused to grant a preliminary injunction to stop the mandate from being enforced on the Greens while the court decided their case on its merits. In his ruling on the injunction, Judge Heaton determined that the Greens were not likely to establish they had a right to “free exercise” of religion while operating Hobby Lobby.
‘[T]he court concludes plaintiffs have not established a likelihood of success as to their constitutional claims,” said Judge Heaton. “The corporations lack free exercise rights subject to being violated and, as the challenged statutes/regulations are neutral and of general applicability as contemplated by the constitutional standard, plaintiffs are unlikely to successfully establish a constitutional violation in any event.”
The Greens appealed their request for an injunction to the U.S. Court of Appeals for the 10th Circuit. A panel of two appeals court judges refused their plea. They then appealed to Supreme Court Justice Sonia Sotomayor, who sits over that circuit, and she declined to reverse the lower courts and issue an injunction.
When Sotomayor ruled against a preliminary injunction on Thursday, the Becket Fund for Religious Liberty, which is representing the Greens, issued a statement indicating that the Greens would not start complying with the mandate on Tuesday and that they would continue to pursue their case in federal court.
“Hobby Lobby will continue their appeal before the Tenth Circuit,” said Becket Fund General Counsel Kyle Duncan. “The Supreme Court merely decided not to get involved in the case at this time. It left open the possibility of review after their appeal is completed in the Tenth Circuit. The company will continue to provide health insurance to all qualified employees. To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs.”
As the nation approaches the much publicized fiscal cliff, it also approaches a moral cliff: Will the Obama administration compel Christians to act against their faith? As of now, the answer seems plain: Starting Tuesday, it will.