The HHS Mandate’s Defenders Ignore Balancing Tests

by David French

Defenders of Hobby Lobby’s religious freedom have long confronted arguments like the following: “Well, if Hobby Lobby wins, then won’t that mean religious employers will try to exempt themselves from minimum-wage laws, child-labor laws, and laws requiring safe working conditions? Where will it end?” In fact, Justice Kagan made the same point in questioning Hobby Lobby’s attorney, Paul Clement, early in the oral argument in the case.

It’s an interesting argument – if one ignores more than a century of rights-based jurisprudence in federal courts. As constitutional attorneys know, declaring that one has a right to free speech or free exercise of religion is not the same thing as pressing an “I win” button in litigation. Rather, once the right is established, the court will engage in balancing tests based on the strength of the right (within the given context) versus the strength of the government interests. To take a classic example, the strength of the free speech right cannot outweigh the strength of the government’s interest when a person tries to use their rights to publish when ships are sailing in wartime. Rights — even at their strongest — can be overcome by “compelling” governmental interests that are narrowly tailored to achieve their goals through the least restrictive means.

Does the government have a compelling interest in forcing employers to pay for religiously objectionable products that are cheaply available in the open market and have been provided in that same market with no documented shortages of supply or access for decades? I would say not.

Does the government have a compelling interest in making sure working conditions are safe enough so that workers don’t face death or serious injury every time they walk on a job site? I would say, yes. The stakes are immeasurably higher.

If Hobby Lobby wins this case, Hobby Lobby (or other companies) do not win every case where they assert religious objections. Each case will be judged on its merits, and governmental interests that are sufficiently compelling will prevail. Once the right is established, the burden shifts where it should — on the government that is imposing its will on its citizens. If the government cannot meet its burden, then the government must and should lose.

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