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Hobby Lobby's Secular Case

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The plight of Hobby Lobby, the arts-and-crafts business whose owners are being forced to compromise their faith, instantly draws the sympathy of religious conservatives. But why should anyone else care?

Recall first that the Department of Health and Human Services issued under the Affordable Care Act a “preventive services” mandate requiring employers to provide, through their insurers, employee coverage for FDA-approved contraceptive drugs and devices.

The Hobby Lobby chain of more than 500 stores is owned by the Green family of Oklahoma City, who run their business in accord with their Evangelical Christian beliefs. Founder David Green says the family cannot in conscience subsidize certain mandated drugs and devices that can cause an abortion early in pregnancy.

So Hobby Lobby challenged the HHS mandate, and the Supreme Court recently announced that it will take up the case. Believers and nonbelievers alike have a stake in the outcome.

The HHS mandate violates the constitutional and statutory rights of the Green family and Hobby Lobby and assaults the freedom of all people to earn their livings in a manner consistent with their most deeply held beliefs. The mandate also could injure those whom it is intended to help, by forcing Hobby Lobby to drop employee health-care coverage altogether.

All Americans should support Hobby Lobby, regardless of whether they believe in one God, 20 gods, or none at all.

The First Amendment to the Constitution stands as a bulwark against this sort of coercion. In Employment Division v. Smith (1990), the Supreme Court held that the First Amendment allows the government to pass “neutral, generally applicable” laws that impose substantial burdens on religious exercise. But in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), the court clarified that a law is not “generally applicable” if it regulates religiously motivated conduct while leaving similar, secular conduct unregulated.

Notably, that second case concerned a corporation. Never in its jurisprudence on free exercise of religion has the Supreme Court treated organizational persons differently from individuals.

Smith doesn’t support the HHS mandate. The mandate isn’t “generally applicable” by any stretch of the imagination. Obamacare provides that millions of large and small secular employers will not have to cover “preventive services” if they provided their employees with “grandfathered” job-based plans that existed on March 23, 2010, and have covered at least one person continuously from that day forward.

Federal law, too, protects the religious liberty of Hobby Lobby. The Religious Freedom Restoration Act provides that the federal government may substantially burden the exercise of religion only if it “demonstrates that application of the burden to the person (1) is in furtherance of a compelling government interest and (2) is the least restrictive means of furthering that compelling interest.”

RFRA’s text and history reflect that Congress intended the statute to protect the same persons as does the free-exercise clause of the First Amendment — including corporate persons.

For the same reason the government’s interests in “women’s health” apply to Hobby Lobby, presumably it applies to those secular companies who offer grandfathered plans to employees. Although comprehensive national programs need not be absolutely uniform to survive scrutiny under RFRA, the sheer scope and scale of the exemptions for similarly situated employers offering grandfathered plans means that the government can’t claim a compelling interest in applying the mandate to Hobby Lobby and the Green  - family.

So the Constitution and federal law protects the Greens against the HHS mandate of Obamacare. Is that something for secular folks to celebrate?

The answer is yes. Individuals are free to choose whether or not to become Hobby Lobby’s employees, and the Greens’ faith-based business practices are open and obvious. Employees also are free to work for the Greens and either pay for additional services out of pocket or purchase supplemental insurance.

The Greens, however, can’t escape the HHS mandate. It is not just an assault on religious liberty. It is an assault on an idea as old as the nation: that the government can’t lightly force us to give up our most deeply held beliefs as the price of earning a living. Every American has an interest in being protected from such assaults.

As a practical matter, the HHS mandate almost certainly will do more harm than good for those employees whom it is intended to serve. The Greens are sincere in their beliefs, and the huge fines for noncompliance could force them to drop all employee health coverage. It’s unlikely that Hobby Lobby employees would regard this outcome as beneficial.

Only blind faith in government’s miraculous power to cure what ails our health-care system could justify the HHS mandate. Our Constitution doesn’t allow HHS to act on that faith in this way, and nothing good would come of it.

Regardless of what or how we believe, none of us should be forced to worship at the state’s altar.

 - Evan Bernick is a visiting legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Originally appeared in the National Review Online

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