LOWRY/The war on Hobby Lobby
Wednesday, March 26, 2014 1:00 AM
Not too long ago, the Greens of Oklahoma City were law-abiding people running an arts-and-crafts chain called Hobby Lobby.
They weren't disturbing the peace, or denying anyone his or her rights. They were minding their own business - quite successfully and in keeping with their Christian faith. The roughly 600 Hobby Lobby stores stock Christian products, close on Sundays and play Christian music.
Then one day Uncle Sam showed up to make an offer that the Greens couldn't refuse - literally. As part of Obamacare, federal law demands that the chain cover contraceptives that the Greens consider abortifacients. The family decided it couldn't comply with the law in good conscience, and its case is now before the Supreme Court.
Hobby Lobby went from an inoffensive business to a scofflaw and an alleged combatant in the "war on women" in no time at all - and without changing any significant employment or business practice. Thus is the transformation wrought by the coercive sweep of Obamacare, which risks doing as much damage to conscience rights as it has done to the insurance market.
Hobby Lobby is trying to fend off the federal government via the Religious Freedom Restoration Act, a law that Democrats used to support before they realized how inconvenient it would prove to the Obama-era project of running roughshod over moral traditionalists. The act says that government can't substantially burden someone's exercise of religion unless there's a compelling governmental interest at stake and it's pursued by the least restrictive means.
The contraception mandate fails on all counts, as Ed Whelan of the Ethics and Public Policy Center has demonstrated in his incisive writings on the case. The Obama administration has admitted that the mandate is a burden on religious exercise through its own regulatory actions. It exempted a small category of "religious employers" (e.g., churches) for just this reason. The Department of Health and Human Services explained that "it is appropriate" to take into account the "effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required."
It is hard to see how the government has a "compelling interest" in the mandate, when the vast majority of employers already cover contraceptives and the administration has exempted many employers with no religious objections by grandfathering their pre-mandate insurance plans.
There are certainly less restrictive means of widening access to contraception. Whelan points out that government could find another, more direct way to distribute or subsidize contraceptives, without forcing any employer to pay for contraceptives that it considers immoral.
The administration argues that the owners of a for-profit corporation have no free-exercise rights, although this runs counter to common sense and the law. Everyone recognizes that nonprofit corporations have such rights, so what makes for-profit corporations different? Besides, Congress went out of its way to define the ambit of the Religious Freedom Restoration Act to include "any exercise of religion," in order to create "a broad protection of religious exercise."
Hobby Lobby is now bizarrely portrayed as wanting to barge into examination rooms. "Selectively denying insurance coverage for contraceptive methods an employer considers sinful," the liberal legal lion Walter Dellinger wrote in The Washington Post, "makes the employer a party to a woman's medical consultations." And here the Greens thought they were just selling glue, scrapbook paper, beads and the like.
The truth is that the Obama administration wants to bring Hobby Lobby to heel as a matter of principle. In its pinched view of religion, faith should be limited as much as possible to the pews. In its attenuated regard for civil society, it believes government should overawe any person, business, or institution whose beliefs run counter to officially sanctioned attitudes.
Make no mistake, the culture war is alive and well, and the aggressor isn't Hobby Lobby. The Greens will be happy to go back to minding their own business - if the federal government sees fit to permit them.
Rich Lowry is editor of National Review. Reach him at firstname.lastname@example.org.