Oklahoma City-based Hobby Lobby is the first non-Catholic business to file a lawsuit challenging the U.S. Department of Health and Human Services' contraception and abortifacient mandate, alleging it violates the freedoms of religion, speech and association.
The Green family, which owns Hobby Lobby, are Christians who conduct business operations according to biblical principles. Among other examples, they employ full-time chaplains and close their more than 500 stores every Sunday. To provide employees with insurance that covers abortifacients, as the mandate requires, would not be consistent with these principles. Yet if the Greens fail to comply, they'll face fines of up to $1.3 million a day.
The discussion of whether the mandate abridges religious liberty has so far focused on the administration's definition of what constitutes a “religious institution” for the purposes of an exemption from the mandate. Historically, all sectarian institutions with a ministerial mission have qualified as religious institutions. Under the HHS mandate, only churches qualify. That is too narrow a definition.
The Hobby Lobby case, though, underscores that First Amendment rights apply first and foremost to individuals. Whether Hobby Lobby as a business exists to fulfill a religious mission or simply to make a profit is immaterial. Either individuals have a right to freely exercise religion — to allow religion to inform not just their private beliefs, but also their public actions, including the way they engage in business and commerce — or they don't. The Obama administration claims they don't; the Constitution says they do.
While the federal government has at times outlawed particular religious practices, so far it hasn't compelled individuals to positively act against their religious beliefs — except, arguably, by paying taxes. (Pacifists still have to pay taxes that fund wars, for example.) Taxes are the price we pay to live in a governed society.
That's precisely why the recent U.S. Supreme Court decision classifying the Obamacare noncompliance penalty as a tax is so devastating; it makes the argument that Obamacare compels people to act against their consciences harder to make. Essentially, Chief Justice John Roberts said employers do have a choice under Obamacare: Provide employees with health insurance that meets the administration's requirements or pay a tax.
To be sure, a judge could say otherwise — and has, even since Roberts' ruling. In a case brought in Colorado by the Catholic-owned-and-operated Hercules Indus-tries, District Judge John Kane issued a temporary injunction against enforcement of the mandate. The public interest in free exercise of religion, Kane said, outweighs the government lawyers' argument that people of faith forfeit their religion when they engage in business.
Indeed it does. I hope the judge who hears the Hobby Lobby case agrees. Still, if we learned anything from the Supreme Court ruling this summer, it's that we can't count on the courts to deliver us from Obamacare. Nothing but a full repeal will restore to individuals the right to refrain from engaging in commerce, conscience-violating or otherwise.
Korbe is policy impact director at the Oklahoma Council of Public Affairs.