The Corner

Courting Religious Freedom

Will religious liberty win in the court cases where Americans are seeking protection from the Obama administration’s narrow view of religious freedom? It has temporarily for one Missouri business owner.

There is potentially hopeful news this week from the Eighth Circuit Court of Appeals for Hobby Lobby, the arts-and-crafts chain whose request for an injunction against the Department of Health and Human Services abortion-drug, contraception, and sterilization mandate was denied just before Thanksgiving. The Eighth Circuit issued an “injunction pending appeal” to Frank O’Brien, a St. Louis business owner, who went to court to protect his religious liberty as an employer against the coercive mandate. Hobby Lobby, represented by the Becket Fund for Religious Liberty, which had already filed an appeal with the Tenth Circuit, added this to their filing, deeming the Hobby Lobby predicament — where the federal government will be compelling the chain’s owners to violate their religious liberty come January 1, when their health-care plan year begins — as “virtually indistinguishable” from the O’Brien case. The lead attorney for O’Brien, Francis J. Manion, senior counsel with the American Center for Law and Justice, talks a bit about the case and what it means for the religious liberty of business owners in America.


KATHRYN JEAN LOPEZ: How important was the injunction you won this week given it is only temporary?

FRANK MANION: It’s highly important because it’s the first time a Court of Appeals has weighed in to any extent on an HHS-mandate case. In order to grant our injunction motion, the court had to be convinced that O’Brien’s claim involves substantial issues and that he has a good chance of succeeding on the appeal. The fact that it’s temporary isn’t that significant. All injunctions pending appeal are, by definition, temporary.

LOPEZ: How did you get involved with the case?

MANION: Frank O’Brien contacted us. I think he was referred by a friend. We had filed comments with HHS about the mandate on behalf of the Nashville Dominicans last year and that seemed to get a lot of coverage. 


LOPEZ: Why is it any of Frank O’Brien’s business if his employees use contraception or even abortion-inducing drugs?

MANION: As Frank would be the first to admit — it’s not. As he put it to me, he doesn’t have any interest in knowing what his employees do in their bedrooms, but when they ask him to pay for it, they make it his business. They are free to make their own “lifestyle choices.” O’Brien should be free to choose not to subsidize those choices.#more#

LOPEZ: Could the Department of Justice be right that he gives up his religious liberty rights when he enters the business world?

MANION: No. There’s no solid legal or commonsense authority for that position at all. It’s true that a business owner’s religious liberty is not absolute. But then neither is anybody else’s. We all accept that our right to free exercise is circumscribed to a greater or lesser extent by compelling government or societal interests — the common good — whether we’re in business or not. But that hardly means free exercise doesn’t exist at all. The DOJ likes to cite the U.S. v. Lee case in which an Amish business owner sought to be exempt from Social Security withholding. While it’s correct that the Supreme Court talked about people in the commercial sphere having to accept certain limitations on their religious liberty, the Court did not say that they have no religious freedom. Just as the Court has held that speech does not lose its constitutional protection simply because it appears in a commercial context, (though it enjoys less protection than non-commercial speech), there is no basis for holding that religious exercise in the commercial sphere is without constitutional protection.

LOPEZ: Are you a bit bewildered by the lack of coverage and concerned about your client and other business owners like him and the threat the HHS mandate poses for their companies?

MANION: Not that bewildered. The pushback needs to come from business owners themselves. I’m more bewildered by the fact that there aren’t more Frank O’Briens out there. At what point will business people say enough is enough?

LOPEZ: Why is the case important?

MANION: Because the HHS mandate is tyrannical (to use a good Founders’ word). It does the very thing the Founders warned against when they talked about the “celestial fire of conscience” and “compelling a man to pay for opinions he abhors.” Crafted by unelected bureaucrats, in cahoots with the professional, neo-eugenicist crowd at the Institute of Medicine, it is coercion of religious objectors on a scale hitherto unknown in this country. And for what — to secure the sacred right of all Americans to force their boss to buy them their birth-control pills? Really? Nobody spilled his blood on D-Day for that.

LOPEZ: What would you wish you could tell every American about Frank O’Brien and this case?

MANION: Frank O’Brien is fighting this fight for the rest of us. He doesn’t want to be doing this. He shuns the limelight. He’s got a business to run, kids and grandkids to enjoy, a life to live. But he’s willing to take on the government because he thinks it’s the right — and necessary — thing to do. 

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