“Wherefore by their fruits ye shall know them.” –Matthew 7:20
In the wake of the Hobby Lobby case, which has been decided by the U.S. Supreme Court narrowly affirming the codified rights of people who lead closely-held corporations, the once steadfast commitment on the Left for religious freedom appears to have all but collapsed. My friend Yishai Schwartz in the New Republic blames this liberal apostasy on the excesses of conservative opposition to Obamacare.
Commentary Magazine’s Seth Mandel dutifully addresses the undercurrent of victim-blaming that transmogrifies Schwartz’s insightful observation into a distressing bit of progressive apologia—after all, what were the owners of Hobby Lobby, their peers, and supporters to do? Void their actual conscience in the name of abstract “conscience protections”? Aggressively police the partisan media narrative of a case they could never hope to control?
Among many avowed progressives, Ruth Bader Ginsburg’s acerbic dissent (the core of which was joined only by Justice Sotomayor) is something of a new Gospel of slippery slopes that the majority has now unleashed in the name of God. Of course, Ginsburg’s parade of horribles is exceedingly disingenuous and painstakingly countered in the very ruling she contests, but we’ll come back to that point soon.
Like many of Ginsburg’s dissenting fans, Jonathan Merritt, who has profited handsomely from his public Christianity, shores up the rising progressive consensus against religious liberty by attacking the notion of Christian businesses. He has made the following point repeatedly, in famously hostile faith-friendly media like MSNBC, before and since the Hobby Lobby decision:
“Additionally, conservative evangelicals believe that a Christian is a person who is actively engaged sanctification, the process of becoming more holy. They accept that this process is accomplished by the work of Christ through the indwelling of the Holy Spirit. But a corporation can neither accept Christ nor be indwelt by the Holy Spirit.
So if someone (or something) can claim the label “Christian” without repentance, belief, salvation, or sanctification, what is left? Or put a finer point on it, what makes a corporation “Christian” exactly?”
It almost goes without saying among the faithful that this liberally secular misconception of how many Christians view their work is precisely backward. Ironically, Merritt touches on the reason behind this truth in his attempt to deny it:
“If the Bible is your ultimate guide, the only organization one might rightly term “Christian” is a church. And this is only because a church in the New Testament is not a building or a business, but a collection of Christian individuals who have repented, believed on Christ, and are pursuing a life of holiness.”
For Christians who have “repented, believed in Christ, and are pursuing a life of holiness,” obedience to God permeates every aspect of life, from the rearing of children to the vocations by which we serve our neighbors, promote the Gospel, and support our families and communities. It is profoundly unchristian to suggest that born-again believers ought to abandon the Word at the precise point at which they gain the ability to minister to the unbaptized world at large.
This very point is arguably at the heart of the parable of the talents in Chapter 25 of the Gospel according to St. Matthew. To start with the obvious, the Lord pointedly rewards the servants who turned a profit on the talents he invested in them for the fact that they turned a profit in his honor. As for the non-profit(able) servant, the Lord also had a lesson (Matthew 25: 26-28, NJKV):
“But his lord answered and said to him, ‘You wicked and lazy servant, you knew that I reap where I have not sown, and gather where I have not scattered seed. So you ought to have deposited my money with the bankers, and at my coming I would have received back my own with interest. Therefore take the talent from him, and give it to him who has ten talents.’”
Before we go any further, let me be clear that I am not not engaging in a theological debate on New Testament hermeneutics. This parable, like any other, is open to all manner of interpretation and moralizing, and individuals in different denominations reach different conclusions for divergent reasons. I bring this parable up only to shore up what many a conservative (or liberal) Christian already knows—one’s vocation (whether in a closely-held for-profit company or otherwise) is often an extension of the ministry of one’s faith, and the economic and political compartmentalization that seems so natural to some (particularly secular) folks strikes many a true believer as a Petrine exercise in denying Christ.
Put simply, it is useless and unproductive to dismiss the faithful to an extraneous audience by progressively “mansplaining” their own beliefs to them. The real issue in this case is whether we, as a nation, will value and protect religious freedom, or not.
Here we should note that, contrary to what some might like to pretend for partisan—or perhaps ingenuously obtuse—reasons, Antonin Scalia’s Employment Division v. Smith decision profoundly limiting the prerogative of religious objection to generally applicable laws remains binding constitutional precedent. That precedent is not abrogated because the Court has now acknowledged the current government’s actions run afoul of a duly enacted law of Congress (the Religious Freedom Restoration Act) long understood—and demonstrated, even under the Obama administration—to protect religious rights beyond the point of incorporation.
For the proof, let us go to the ruling. In the first place, there is a test for how religious freedom claims are to be evaluated for exemption:
“The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicabil- ity” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.””
And lest you get caught up, as is fashionable, one the term “person,” the majority notes (my emphasis):
“HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations. RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 16–19”
In case your objection, like Merritt, is over whether a corporation is for- or non-profit (and here let us remember, as Schwartz notes, that churches, newspapers, schools, and other charities are all corporations), the justices also have an answer:
“HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profit-making objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. Pp. 20–25.”
But, Smith! you (and Ginsburg) say, noting its appearance in the prior passage:
“Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre-Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition of the phrase from that in First Amendment case law. Third, the pre-Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. Pp. 25–28.”
The majority even goes so far as to assume the prerogative of the government to mandate cost-free contraception:
“The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 39–40.
(2)The Government has failed to satisfy RFRA’s least-restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. Pp. 40–45.”
Taking into account all of Ginsburg’s objections faithfully, the majority nonetheless observes that existing U.S. law—not the Constitution, mind you—requires more accommodation of the religious beliefs motivating closely-held corporations, whatever the profit motive, than Obamacare’s unelected regulators allowed. (Here we should note that Justices Kagan and Breyer pointedly renounced Ginsburg’s musings against RFRA’s protections for profit-making corporations.)
And let’s be clear, as the President would say, that the Obama administration essentially argued that closely-held corporations should be forced to fund everything from non-kosher products (whether Jewish or Muslim) to late-term abortions to assisted suicide were government bureaucrats to mandate it. If opponents of this ruling are fine with that reasoning, they should say so openly and clearly.
As for the supposedly slippery slope, the majority notes the slide is actually quite sticky (my emphasis):
“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
… HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer… We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U. S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435.
Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes.”
So contrary to what you may have heard, contraception is and will be no less accessible now than it was just two years ago. Corporations, like individuals, will still generally and broadly be compelled to follow laws. Women, gay people, nonbelievers, and so on will be no more oppressed tomorrow than they were the day before yesterday. And the Supreme Court is not in the business of legislating the hyperbolic political grievances of the Left (or the Right). The only legitimate grounds for opposing this ruling is either because one believes, as Breyer and Kagan do, that the contraception mandate passes the RFRA test (an understandable disagreement) or because one outright opposes RFRA.
If Democrats honestly now believe the once bipartisan consensus for protecting religious freedom—forcefully promoted by such disparate voices as Orrin Hatch and Ted Kennedy (who explicitly endorsed the two-part RFRA test Justice Alito quotes in the majority decision)—is analogous to Apartheid and Jim Crow, or comparable to slavery and segregation, then they should act accordingly. As New Jersey Republican Gov. Chris Christie helpfully noted in his principled evasion of a response to the Hobby Lobby ruling:
“When…your Supreme Court makes a ruling [you] gotta live with it, unless you can get the legislative body to change the law or change the Constitution.”
If liberals and progressives are willing to admit their opposition to RFRA and campaign accordingly, then I, like many a conservative, welcome the opportunity for honest debate about American values and sound policy in the modern era. Otherwise, all this Ginsburg-fueled partisan mendacity is little more than a tale told by an idiot, full of sound and fury, signifying hackery nothing.