Parading Horribles Instead of Defending Religious Freedom

by Kathryn Jean Lopez

One of the expected themes — because it was in the Department of Justice’s brief — during the Hobby Lobby/Conestoga Wood case before the Supreme Court yesterday was the idea of a parade of horribles that would come should the companies win their religious-liberty claim. Ed Whelan has written about this here and here in response to the brief. The way the argument goes is that if you let employers opt out of abortion-pill and contraception coverage next employers are going to claim religious objections to sexual-harassment laws, minimum-wage laws, Social Security taxes, and vaccine coverage.

As Ed points out:

The fact that the Obama administration has provided an exemption from the HHS mandate for houses of worship and the so-called “accommodation” rule for religious nonprofits shows that it recognizes that the HHS mandate substantially burdens religious exercise. Nothing comparable exists for DOJ’s examples.

In another post he quotes from the Ethics and Public Policy Center’s amicus brief in support of Hobby Lobby and Conestoga Wood Specialties:

 it bears repeating that recognizing a corporation’s exercise of religion under RFRA or the Free Exercise Clause does not mean that the corporation’s free exercise rights will always prevail under the applicable standard. To be sure, the application of the HHS mandate here does violate the RFRA and Free Exercise Clause rights of these corporate Plaintiffs. But if the Government is correct in its dire predictions as to the harmful consequences that will supposedly follow from upholding religiously-based corporate exemptions from various other statutes not at issue here, then presumably it will be able to defeat such claims by demonstrating that those statutes serve compelling interests and employ the least restrictive means. 

Indeed, if there is any reading of RFRA and the Free Exercise Clause that raises disturbing implications, it is the Government’s.  According to the Government, it can make any market for goods or services a Free-Exercise-Free Zone simply by the artifice of placing whatever obligations it wants on corporate entities rather than on natural persons. 

In the Government’s view of the matter, an incorporated kosher deli could be forced to carry non-kosher goods; an independent Catholic hospital with a lay board could be required to provide abortions; a closely-held market owned by Seventh-day Adventists could be required to open on Saturdays; and an incorporated retail store owned by Muslims could be forced to carry liquor. 

During Tuesday’s oral arguments, former solicitor general Paul Clement echoed this in response to early pushback from Justice Sonia Sotomayor:

here’s one where it’s so religiously sensitive, so fraught with religious controversy, that the agency itself provides a certain number of exemptions and accommodations. So that’s one way, I think, that you’d address the first step of the question here.

And in response to Justice Ginsburg, he said:

Now, in fairness, what they understood is that we were probably talking about in the real world a relatively small set of corporations like an incorporated kosher market or kosher deli of the kind that this Court had before it in the Crown Kosher case. And so I think it’s ­­ you know, we can talk about the extent and how you’d apply these principles to Exxon, but I think that’s just something that’s not going to happen in the real world. It is no accident that the claims that you have before you in these cases are brought by small closely­held corporations that have firmly held religious beliefs.

Being grilled by the three women of the Court, he used the Justice Sandra Day O’Connor trump card:

the parade of horribles that the government offers you ought to sound familiar, because if you look at that parade of horribles ­­ Social Security, minimum wage, discrimination laws, compelled vaccination ­­every item on that list was included in Justice Scalia’s opinion for the Court in Smith. And Justice O’Connor responded to that in her separate opinion and she said, look, you’ve got to trust the courts; just because free exercise claims are being brought doesn’t mean that the courts can’t separate the sheep from the goats. 

And in conversation with Justice Alito the reality of life was made further clear:

millions of Americans are employed by proprietorships, partnerships, and nonprofits. So if these statutes really were on a collision course, I think we would have seen the collision already.

There are a couple of things going on, at least politically:

a) There’s a disbelief that there is a religious-liberty claim here, one that is a consequence, in no small part of the secularization that so many religious folks have internalized — believing that the only way to operate is to compartmentalize and privatize religious values. But the Green and Hahn families are reintroducing the concept of an integrated life of religious faith to us as they protect our religious liberties. It’s what Catholic bishops, an ecumenical coalition, and some of my friends at Catholic University (see John Garvey, and the aforementioned Catechism for Business), among many others, have been trying to do.

b) Relatedly, there is an assumption that this is all political. But as I pointed out yesterday and is clear from my interviews with him, Anthony Hahn of Conestoga Wood Specialties had no desire to be in Washington, D.C. yesterday. Yes, there are groups who opposed Obamacare entirely who support Hobby Lobby. That does not discredit the religious-liberty claim. (This isn’t a vast-right wing ploy to destroy Obamacare. And it’s not like the implementation disasters/delays need the help, anyway.)

c) There is this insistence by commentators that it is significant that the women of the Court were the first to push back against Clement. At least one TV discussion I heard today insisted that you can’t possibly understand why the Greens and Hahns are wrong unless you’ve used contraception. And, as if to throw one final bra on the fire, the audacity of Paul Clement being a man was raised.

Americans don’t really want to surrender religious freedom to these ridiculous arguments, meant only to advance sexual revolutionary values — which we’re all free to have (and in the day of conscious uncoupling, really, they don’t seem in danger of marginalization), but what right does an executive have to force them on people – as a government mandate? Do we?