Bench Memos

President Obama’s Public Rhetoric vs. Department of Justice’s Defense of the HHS Mandate

Law professor (and Becket Fund lawyer) Mark Rienzi explores the gap “between President Obama and his lawyers over whether profit-making businesses can pursue goals other than making money, including adhering to religious requirements”:

Businesses act on principles beyond the pursuit of profit every day.  Vegan markets refuse to sell animal products because they are ethically opposed to hurting animals. Some employers have long provided benefits to same-sex partners based on the moral view that doing so is right and just.  Some investment funds refuse to invest in fossil-fuel companies because they view them as destructive.  Businesses following moral, ethical, philosophical, and environmental principles are all around us.

Similarly, some businesses operate according to religious principles.  The Hahn family, for example, are Mennonite Christians who run Conestoga Wood, a cabinet-making company in East Earl, PA.  They have long followed the President’s admonition to consider the “broader purpose” their business might serve, and to avoid leaving their “values at the door.”  Yet yesterday they heard government lawyers tell judges that because their company earns money, the Hahns cannot follow their religion while they work.  The government seeks to impose crushing fines on the Hahns ($95,000 dollars every day) unless the Hahns will start violating their religion and paying for drugs that they believe cause abortions.

The lawyers have it all wrong.  Earning money doesn’t suddenly give the government the right to extinguish your constitutional rights.  The New York Times Company is a profit-making corporation, but it obviously has free speech rights.  Many doctors provide abortions for profit, but of course the government could not stop them just because they make money.  We don’t trade in our constitutional rights when we earn a living.


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