This column by ACRU Senior Legal Analyst Ken Klukowski was published on November 25, 2012 on Breitbart.com.
Can an American citizen exercise his religion through his privately-owned business? The fate of Obamacare’s disturbing HHS contraception mandate turns on that question, and now the federal courts are split on the answer regarding an issue very likely to end up at the U.S. Supreme Court.
Since the Supreme Court (wrongly) upheld Obamacare’s Individual Mandate as a tax in NFIB v. Sebelius, a second round of litigation has commenced going after several other aspects of the federal government’s takeover of America’s healthcare system. Of those, none are as much in the news right now as the challenges to the HHS Mandate, requiring employers to provide no-cost birth control, sterilization, and abortion-related services. This is a regulation–not even mentioned in the law Congress passed–issued by Secretary Kathleen Sebelius of the U.S. Department of Health and Human Services (HHS).
The HHS Mandate applies to every company with 50 or more employees. It has a narrow religious employer exemption, but it only applies to (1) nonprofit organizations, that (2) employ mostly members of that faith, (3) serve mostly members of that faith, and (4) exist primarily to teach the tenets of that faith. Essentially, it only benefits churches, synagogues, and similar houses of worship.
Other religious institutions falling outside this narrow exemption–such as my alma mater, the University of Notre Dame (which will play for the college football national championship in Miami on Jan. 7–Go Irish!)–filed suit against Sebelius and HHS.
But those lawsuits are all in the process of getting dismissed, because the Obama administration issued an official notice that it would expand the exemption to cover more organizations, and so it’s possible that these religious schools, hospitals, and charities will never fall under the mandate, and thus not suffer an actual injury to confer standing to bring this matter to federal court, at least not until the expanded exemption is finalized.
But many devoutly religious people own secular, for-profit companies, and consider it part of living out their faith to conduct their business in a manner consistent with their religion. Some of those companies are also suing Sebelius, arguing that the HHS Mandate is a violation of the Free Exercise Clause of the First Amendment, and the Religious Freedom Restoration Act (RFRA). It is clear that such companies are not being considered for protection under the expanded religious employer exemption, so courts have a green light to rule on their lawsuits now.
Several of these lawsuits are moving forward in the courts. Matt Bowman of the Alliance Defending Freedom (ADF)–the largest religious-liberty legal organization and network in the country–is representing several companies, and has won the first round in two cases so far. These are Newland v. Sebelius in Colorado, and Tyndale House Publishers v. Sebelius in D.C. In fact, ADF is representing companies in at least seven lawsuits, including two plaintiffs in my home state of Indiana. Thomas More Law Center is representing another early success, representing Weingartz Supply Company in Michigan, while the Becket Fund suffered an early setback representing Hobby Lobby. And yet another–Liberty Institute–is preparing to launch litigation. In each case, the question is whether the court will grant a preliminary injunction to put the mandate on hold while the case moves forward to final judgment.
These cases all turn on one question: Can people exercise their religion through their businesses? Whether it’s a matter of treating a wholly-owned company as an extension of a person or family, or whether a company has separate standing to assert the rights of its owners.
That would be a closer call if these were publicly-traded companies with thousands of shareholders. But here, the companies are entirely privately owned by a person of faith, or a family that shares one faith, or by a family foundation operated by those religious family members.
So the answer is directed by how you define religious freedom. If you agree with the Obama administration that the Constitution only protects freedom of worship–which is usually confined to what you do on Sunday morning in a church building–then you might think the HHS Mandate is okay.
If instead you agree with the Framers of our Constitution that religious exercise includes living out your faith in your daily life, then you would find it appalling that the federal government would order a business owner to subsidize something he considers immoral, and possibly even participating in the ending of an innocent human life.
So now appellate courts will take up the issue. All of them should hold the HHS Mandate violates RFRA, since that law forbids federal government actions that substantially burden a person’s religion unless the government has a compelling reason and there is not a less-restrictive means available. The HHS Mandate clearly fails that test. And in holding the mandate violates RFRA, no court need even reach the question of whether the mandate also violates the First Amendment (which it does).
Even though most lower courts are holding that the HHS Mandate is probably illegal, the fact that judges are splitting on this issue suggests that the high courts will also split when these cases go up on appeal. If so, then it’s a good bet that this issue will go before the U.S. Supreme Court, possibly in 2014.