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Hobby Lobby and the Religious Freedom Frauds

June 30, 2014

To hear the best and the brightest of the conservative movement tell it, Americans' freedom of religion is in dire peril. At Liberty University in April, Texas Senator Ted Cruz cautioned, "Religious liberty has never been more under attack." Ben Sasse, the Nebraska GOP Senate candidate, went even further in declaring that "the free exercise of religion is co-equal to our right to life," adding "government cannot force citizens to violate their religious beliefs under any circumstances." Competing with Cruz in the 2016 Falwell primary, Louisiana Governor Bobby Jindal used his Liberty University commencement address to similarly warn his audience. "Make no mistake," Jindal said, "The war over religious liberty is the war over free speech and without the first there is no such thing as the second."
Coming as it did in the run-up to the Supreme Court's ruling in the Hobby Lobby case, the right-wing outcry about a supposed war on religious freedom is especially galling--and more than a little ironic. After all, less than two months ago in Town of Greece v. Galloway, the Roberts Court ruled that sectarian Christian prayers used to open a town council meeting did not violate the constitutional prohibition against government establishment of religion. On Thursday, the Supreme Court in McCullen v. Coakley ruled that 35 foot buffer zones created to protect patients entering family planning clinics in Massachusetts were unconstitutional. (As Sarah Posner summed up the opinion limiting women's protections from verbal harassment and threats of violence, the Court in essence concluded that "your uterus is 'an important subject' about which your fellow citizens 'wish to converse.'") In April 2011, a 5-4 majority upheld an Arizona law designed to evade restrictions on school vouchers by giving gives taxpayers there a dollar-for-dollar state tax credit of up to $500 for donations to private "student tuition organizations." Meanwhile at the White House, President Obama has continued to pour billions of Americans' tax dollars into George W. Bush's so-called "faith-based initiatives," despite his unfulfilled 2008 campaign pledge to protect beneficiaries and employees alike from discrimination practiced by grant recipients.
But even more reprehensible than social conservatives' whining about the war against the separation of church and state they started is their transparent hypocrisy on the issue of religious liberty itself. As any number of case studies (real and imagined) and their wave of draconian anti-abortion restrictions across the nation show, Republicans are really demanding "religious freedom for me, not thee."
To understand why, it's important to start with Hobby Lobby's challenge to the popular contraception mandate for employer-provided health insurance under the Affordable Care Act. At its core, the case will decide whether the 1993 Religious Freedom Restoration Act (RFRA) protects the free exercise of religion by corporations from the federal government's regulation of interstate commerce. As Taylor Malmsheiner explained, while the ACA exempts religious organization and religiously-affiliated non-profits from the mandate:

The mandate does not exempt any for-profit employers--even those that are owned by religious families. Hobby Lobby, for instance, is owned by the Green family, who are evangelical Christians, while Conestoga Wood is owned by the Hahn family, who are Mennonites. Both owners have stated that covering certain contraceptives would violate their religious beliefs--for example, they view Plan B, which can prevent pregnancy when taken up to five days after unprotected sex, as a form of abortion.
When the companies filed suit against Obamacare, they argued that the contraceptive mandate breaches the 1993 Religious Freedom Restoration Act (RFRA), which states that the government cannot "substantially burden religious exercise" unless there is a compelling interest met in the least restrictive means. The Court will not look at the whether the owners' religious beliefs are accurate, but whether the mandate will substantially burden the corporation, says Laurie Sobel, a senior policy analyst for women's health policy at the Henry J. Kaiser Family Foundation. The plaintiffs have argued the fine they will face for noncompliance with the mandate would be a substantial burden.

Leave aside for the moment the Green family mission to introduce its biblical curriculum into public schools, its past employee health insurance plan which covered the very emergency contraceptives it now opposes and its retirement plan investments in companies manufacturing the birth control products in question. As Garrett Epps argued, if the long history of Supreme Court precedent through Chief Justice John Roberts' tenure means anything, Hobby Lobby should lose.
In the 1981 case of United States v. Lee, the Supreme Court ruled that Amish farmer Edwin Lee could not refuse to pay Social Security payroll taxes for his employees despite his religion's clear rejection of social insurance:

"When followers of a particular sect enter into commercial activity as a matter of choice," the Court's unanimous opinion said, "the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity."

Importantly, in 1994 Congress came to the aid of Lee and those in his position by revising section 26 U.S.C.A. § 3127 of the Social Security law to exempt any employer or partnership consisting of members of any "recognized religious sect" that is "conscientiously opposed to acceptance of the benefits of any private or public insurance" from paying payroll taxes for any employee "who is also a member of such a sect." That date is important, because it came a year after bipartisan passage of the 1993 Religious Freedom Restoration Act.
And RFRA came into response to Justice Antonin Scalia and his 1990 run-in with peyote. In Employment Division v. Smith, Scalia wrote the majority opinion rejecting the claims of two Native Americans denied unemployment benefits for having ingested peyote in keeping with their religious practices. "To permit this," he wrote in Smith, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

"The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," he wrote, "ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."

Alas, that was then and this is now. Though Congress since passed and President Clinton signed RFRA in 1993 in response to Scalia's 6-3 majority opinion in Smith, it was not designed as a sword for businesses. "Once you went into the commercial marketplace," the law's architect Rep. Jerry Nadler (D-NY) explained, "It was always understood you were subject to the law there." Nevertheless, the Court's conservative wing--including Justice Scalia--has given every indication that past precedent will be no indication of future performance. As the New York Times demonstrated in May, "For Justices, Free Speech Often Means 'Speech I Agree With.'"
And if the Supreme Court reverses course to declare that the free exercise of religion by a company's owners trumps the law of the land, the consequences could be staggering. While the owners of Hobby Lobby and Conestoga Wood, like the offended Arizona taxpayers, suffer no actual injury by the contraception mandate, employees at their businesses--and others around the country--most certainly would.
When over 11 million women between the ages of 15 and 44 use oral contraception--58 percent of them for health reasons beyond family planning--the government's interest would seem compelling indeed. And as Elena Kagan described the impact on Hobby Lobby and its 16,000 employees:

When the employer says, 'No, I don't want to give that,' that woman is quite directly, quite tangibly harmed."

And that woman won't be alone. As the Reverend Barry Lynn of Americans United for the Separation of Church and State warned, Hobby Lobby could open "a Pandora's Box with some very ugly creatures flying out."

"Scientology-believing employers could insist on non-coverage of its nemesis, psychiatry. Jehovah's Witness-owned corporations could demand exclusion from surgical coverage, under the theory that so many of such procedures require the use of whole blood products forbidden by their faith."

That's just the beginning of the hypothetical horror stories. Christian Scientist-owned Gray Spaulding Industries could refuse to cover blood transfusions or even to provide health insurance at all. Huckabee Enterprises, a publicly-traded but Baptist-controlled firm might rightly claim it was exempt from providing benefits to same-sex domestic partners or married gay couples. (After all, its CEO declared "We are under an obligation to obey God" and compared same-sex marriage to the Holocaust.) If the Employee Non-Discrimination Act (ENDA) ever made it out of Congress alive, it would be dead on arrival at Huckabee's front door. It's not hard to imagine the next Hobby Lobby arguing it is exempt from any state and federal paid family leave laws, at least when it comes to "sinful" single mothers or same-sex spouses.
In their amicus brief in the Hobby Lobby case, Sens. Ted Cruz (R-TX), John Cornyn (R-TX), Mike Lee (R-UT) and David Vitter (R-LA) explained why. "The First Amendment guarantees every American the right to free exercise of religion," Cruz proclaimed, charging that the Obama administration is refusing to grant waivers "to people with sincerely held religious beliefs." As Cornyn put it in defending the Green family's right to deny mandated contraception coverage to Hobby Lobby workers:

"I join in filing this brief to protect the rights of all Texans and all Americans to practice their religious beliefs without obstruction from the federal government."

And what goes for employees, they and their allies insist, goes double for their customers.
Over a dozen states are currently considering so-called "Preservation of Religious Freedom Acts" to enable Oregon bakers, New Mexico photographers and just about any other business to refuse to sell to same-sex couples seeking to purchase their goods or services for upcoming weddings. While the U.S. Supreme Court refused to take photographers Elaine and Jonathan Huguenin's case, their lawyers and their allies argue that New Mexico's anti-discrimination laws represent "compelled speech."
Of course, religious conservatives otherwise have no problem at all with compelled speech, especially when the speaker is a physician and the speech is about abortion.
As I previously noted about the tidal wave of abortion restrictions being added to the books in GOP-controlled states:

Republicans are legally requiring that American doctors commit medical malpractice. In many states, physicians must withhold potentially life-saving care or, conversely, provide unneeded tests and procedures. When it comes to topics like "fetal pain," so-called "post-abortion syndrome" and the mythical breast cancer link, doctors are mandated to lie to their patients. And if they remain silent about severe fetal conditions which might lead a woman to terminate her pregnancy, physicians would be immunized from liability.

Conservatives increasingly insist that doctors and the companies that employ them cannot freely exercise their own religions or exercise free speech at all. And while the GOP would protect physicians from litigation for what they don't say, Republicans would expose them to lawsuits for what they do say. Take, for example, so-called "abortion regret laws" like the one proposed in Iowa last year:

Under the legislation, a patient could sue a doctor within ten years of terminating a pregnancy, even after signing a form acknowledging informed consent. In addition to suing for physical injury, a patient could sue for emotional distress, which would include a negative emotional or mental reaction, grief, anxiety, or worry.
The bill significantly increases the risk doctors face in providing abortion care in a couple of important ways. First and foremost, it creates an entirely separate legal claim related only to abortions, despite the fact that any patient injured during an abortion can already sue for medical malpractice. Second, it increases to at least ten years the amount of time a patient has to sue, and allows a claim to proceed even if a patient acknowledges that the risks associated with the procedure were explained.

To put it another way, for Republicans like Ted Cruz, Sam Brownback, Rick Perry and so many more, doctors providing abortion services don't have First Amendment rights. They would even muzzle a Christian obstetrician like Dr. Willie J. Parker, who decided to perform abortions after "I came to a deeper understanding of my spirituality, which places a higher value on compassion."
On the other hand, if doctors, nurses and pharmacists or the hospitals, clinics and drug stores that employ them place a higher value on a fetus than the woman carrying it, conservatives have codified their rights to refuse treatment. As the Guttmacher Institute recently summed it up:

A patchwork of federal laws explicitly allows many health care professionals and institutions to refuse to provide care related to abortion and sterilization services. Collectively, these laws prevent government agencies from forcing the provision of services or "discriminating" against individuals and institutions that refuse to provide them; they also prevent institutions receiving certain federal funds from taking action against health care personnel because of their participation or nonparticipation in beliefs about abortion or sterilization. Separate federal laws and regulations, notably Title VII of the Civil Rights Act, prohibit employers from discriminating against personnel based on religion, including religiously based objections to performing specific job functions; an employer must reasonably accommodate an employee's religious practices unless doing so would impose an undue hardship on the employer.

And when the employer is one of the rapidly growing networks of Catholic hospitals that now provide 15 percent of the nation's hospitals beds, that means all of the undue hardship will be imposed on the patient.
The flurry of mergers and acquisitions by Catholic hospital chains is altering the landscape of American health care. Even in pro-choice states like Washington, entire cities and large rural areas are now lacking hospitals and clinics which can provide abortion services, even in life and death emergencies. Increasingly, the clashing requirements of the Catholic hospitals' public mission and their religious tenets are putting patients, doctors and staff at risk. In 2007, physician Ramesh Raghavan wrote in the Journal of the American Medical Association of his wife's experience. As Jonathan Cohn recounted the horrifying episode:

[Raghavan's wife], a woman, also pregnant with twins, whose pregnancy was failing, threatening infection that could jeopardize her ability to have future children and perhaps her life. Distraught, she and her husband decided to terminate the pregnancy--only to learn the Catholic hospital would not perform the procedure.

A few years later, New Hampshire waitress Kathleen Prieskorn went to her doctor's office after a miscarriage--her second--began while she was three months pregnant. She quickly learned that her emergency was not one for which treatment would be available from her hospital's new operators:

Physicians at the hospital, which had recently merged with a Catholic health care system, told her they could not end the miscarriage with a uterine evacuation--the standard procedure--because the fetus still had a heartbeat. She had no insurance and no way to get to another hospital, so a doctor gave her $400 and put her in a cab to the closest available hospital, about 80 miles away. "During that trip, which seemed endless, I was not only devastated but terrified," Prieskorn told Ms. "I knew that, if there were complications, I could lose my uterus--and maybe even my life."

Perhaps the most notorious case, as both the New York Times and the New Republic reported, involved Catholic Health West and one its hospitals in Phoenix. A 27-year old woman, 11 weeks pregnant and suffering from "right heart failure" came to St. Joseph's Hospital and Medical Center. What happened next may be a frightening omen of things to come:

Physicians concluded that, if she continued with the pregnancy, her chances of mortality were "close to 100 percent." An administrator, Sister Margaret McBride, approved an abortion, citing a church directive allowing termination when the mother's life is at risk. Afterward, however, the local bishop, Thomas Olmsted, said the abortion had not been absolutely necessary. He excommunicated the nun and severed ties with the hospital, although the nun subsequently won reinstatement when she agreed to confess her sin to a priest.

Imagine instead the reaction of Tony Perkins, Cardinal Timothy Dolan or Rick Santorum if an emergency room physician, previously a victim of clergy sex abuse, refused to assist a Catholic priest stricken by a heart attack.
Thanks to the conservative logic in the Hobby Lobby and Town of Greece cases, our right-wing parade of horribles doesn't have to stop there. What if a Muslim doctor said no to saving the gunshot victim whose t-shirt read, "Judea and Samaria Belong to Israel?" What would Michele Bachmann or Pamela Gellar say about the Muslim gas station owner who refused to serve those who endorsed the arson at his Murfreesboro, Tennessee mosque? Or, what about when the city council of Dearborn, Michigan invites an area Imam to join the list of local clergy delivering its opening prayer?
On this there is no need to speculate. Many of the same voices who vociferously opposed the planned mosque in lower Manhattan (which John Cornyn proclaimed, "not about freedom of religion") have been slandering Dearborn for years.
Bordering Detroit, that city of 97,000 residents has had a large and prominent Arab American population for a century. But in the wake of September 11, 2001, many of those cheering for a Hobby Lobby victory now quickly made Dearborn the place "where Americans come to hate Muslims." Whether it is Koran-burning pastor Terry Jones, incendiary blogger Debbie Schlussel, the California-based Bible Believers or RenewAmerica, Daniel Denvir explained two years ago:

Dearborn is a must-visit location on 21st-century America's newly established anti-Muslim protest circuit.

Coming to fight in their imaginary battle against Sharia law, the Bible Believers protest the city's annual Arab International Festival. Last year, the Christian missionaries brought a pig's head and signs insulting Islam's prophet. The 2014 event over Father's Day weekend was cancelled.
Cancelled, that is, like the freedoms of speech and religion that the champions of Hobby Lobby claim to defend. This month, Louisiana Governor Bobby Jindal confused aggressor and defender at the recent Faith and Freedom Coalition conference when he warned there was a "silent war" on religious liberty being fought in the U.S.:

"I am tired of the left. They say they're for tolerance, they say they respect diversity. The reality is this: They respect everybody unless you happen to disagree with them," he said. "The left is trying to silence us and I'm tired of it, I won't take it anymore."

But the First Amendment freedoms of speech and religion don't include a right not to be offended. As the Hindu turned Catholic Jindal well knows, religious views like any other must compete in the "marketplace of ideas." (When a majority of Americans believe Duck Dynasty patriarch Phil Robertson is wrong, that doesn't mean he's been wronged.) And when one group of Americans demands the government replace the religious beliefs of others with its own, religious freedom is not protected but threatened. Jefferson's wall separating church and state doesn't just protect government from religion; it also protects religion from government. That's why it was so appalling to hear Rick Santorum complain he "almost threw up" when he read John F. Kennedy's 1960 speech to the Southern ministers. And it's also why, before he too became a religious freedom fraud, Santorum's fellow Catholic Antonin Scalia was right when he declared of the Native American plaintiffs defending their use of peyote from government sanction:

"To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

(This piece first appeared at Dailykos.)


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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