Freedom of Religion in the Age of Affordable Care

In recent months, the furor over the Obama administration’s Affordable Care Act has centered largely on the technical debacle; a website that doesn’t work and a maddening thicket of bureaucratic delays and coverage issues.

But that doesn’t mean that issues of conscience and the Constitution have gone away. Rather, they have been making their way relatively quietly through the lower courts. Now the U.S. Supreme Court has agreed to hear arguments in a case concerning whether businesses may be exempted from providing medical benefits that run contrary to their religious beliefs.

Interest in the issue runs very high. The two representative cases — Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius — were chosen from no less than 40 such lawsuits. And the amicus curiae, friend-of-the-court, briefs from outside parties not directly involved in the litigation, number over 100 filed on both sides. Among them: 20 States, over 90 U.S. Senators and Representatives, and a long list of public policy groups, legal experts and religious organizations.

Indeed the case has implications which go far beyond the new healthcare law. The federal government’s legal position is that the federal law protecting religious freedom (the 1993 Religious Freedom Restoration Act) does not cover owners of corporations or for-profit businesses.

That is why seven national Orthodox Jewish organizations, including Agudath Israel of America and National Council of Young Israel, have filed a joint friend-of-the-court brief, seeking to protect citizens from the encroachment of federal government on their religious practice.

The amicus brief makes the important point that Orthodox Jewish business-owners have identical religious observances whether their businesses are operated by family-owned corporations or as proprietorships or partnerships. To underscore the relevance of the Supreme Court case for the Jewish community, it cited the recent experience of seven Williamsburg merchants who posted signs in their stores barring immodest dress, and a case that had been brought against a Shabbos-observant medical clinic in Spring Valley and Monsey because the clinic was closed on Shabbos. The response of the religiously observant owners that religious observance required closing on Shabbos resulted in dismissal of the complaint. The amicus brief argued that the same result should follow whether it was a non-profit or a for-profit clinic.

What lies behind the federal government’s position? Washington wants to see full implementation of the ACA. Sometimes its agenda runs into conflict with religious principles, and when one or the other has to yield right of way. Not surprisingly, they would expect religious businessmen to compromise their principles or suffer the financial consequences.

Of course, the legal arguments are more subtle. The House of Representatives amicus brief, for example, argues that “for-profit business corporations, as legal abstractions, are incapable of exercising the intensely personal emotions associated with religious worship. The right to the free exercise of religion instead belongs to human beings.  While the Court has recognized corporate constitutional rights in some contexts, it has not done so when the right in question is rooted in human dignity.”

While this might be a reasonable enough position regarding Wal Mart or Bank of America Merrill Lynch, the businesses who are threatened by such action are not in the same ball park. Not only in terms of size but of character, as well.

Both Hobby Lobby and Conestoga, though not small — with 13,000 and 950 employees, respectively — are family-owned and operate on religious principles, such as remaining closed on Sundays.

These businesses presumably meet the congressional test: they are made up of human beings who are quite capable of “exercising the intensely personal emotions associated with religious worship.”

Another argument advanced by the government’s supporters posits that protection of freedom of religion in such cases applies only when the law “substantially burdens” the free exercise of religion. Since Obamacare does not force them to suffer any significant financial loss or to themselves actively engage in practices that violate their faith, they hold that it does not qualify as a “substantial burden.”

However, it depends on your definition of “substantial burden.” For those who take their religious beliefs seriously, they likely view themselves as forbidden to comply with laws which would entice or enable others to perform immoral acts. To demand that they be a stumbling block for others is indeed to impose a substantial burden. Furthermore, the RFRA itself was designed to protect religious freedom, not to abridge it, as the  government construes it.

Seen in historical context, the government’s case is particularly disturbing. At a time when the highest courts in the land have been broadening recognition for almost every conceivable immorality, undermining traditional values and especially the sanctity of the family, here we have a case where the government seeks judiciary sanction for a narrowing of the freedom of religion.

It is ironic that those who display such broadmindedness when it comes to behavior that not so long ago was universally repugnant, show such narrow-mindedness about the most cherished ideals of western civilization. Tolerance for immorality on the one hand, intolerance for morality on the other.

While we realize that it would be unrealistic to hope for a rollback of immorality in American society at this juncture, we do call upon the Justices of the Supreme Court to at least recognize in the Constitution the resources to contain it.

Certainly, it was not the intent of the Founders that one should have to choose between the exercise of religion and conducting a business. Let not the federal government, in the name of health care or any other cause, be allowed to impose such a choice upon us.

This article appeared in print on page 10 of the February 4th, 2014 edition of Hamodia.