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September 7, 2012
by Wesley J. Smith
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side bar side bar side bar side bar side bar side bar side bar side bar Here's the story: We have discussed previously at tothesource how the "Free Birth Control Rule"—requiring that employers, except houses of worship, offer their employees free contraception and sterilization surgeries—forces dissenting religious organizations to violate the faith under coercion of law.

The rule doesn't apply to religious employers until 2013. But private business owners who might also be religiously opposed must now comply or pay a stiff penalty. That didn't sit well with William Newman and his siblings, the self-insuring Catholic owners of Hercules Industries, a Colorado heating and air conditioning company. With the help of Alliance Defending Freedom (formerly, the Alliance Defense Fund), the individual family members and their corporate entity (a Sub S corporation) sued, claiming (in addition to constitutional arguments) that the Free Birth Control Rule violates their legal rights under the Religious Freedom Restoration Act.

The RFRA was enacted in 1993 to overturn a Supreme Court decision that allowed federal drug laws to supersede Native American religious ceremonies which include the use of peyote. Under the law, once the Newmans demonstrate that the regulation forces them to violate their Catholic faith, the government has the burden of proving it has a compelling state interest in so doing.

Since significant harm rarely accompanies the free exercise of religion, that's usually a very tough nut to crack, As a wild hypothetical to illustrate the concept, the federal government could certainly demonstrate a compelling interest in preventing sincere neo-Aztec religionists from engaging in human sacrifice. But what is the compelling federal interest in forcing Catholic business owners to provide free birth control?

There would seem to be none. So, the Obama Administration mostly argues that the RFRA does not protect religious liberties in the business context. Specifically, the government's "Memorandum in Support of Motion to Dismiss" in Newman v. Sibelius argues:

  1. "Hercules Industries is a for-profit, secular employer, and a secular entity by definition does not practice religion."
  2. "It is well established that a corporation and its owners are wholly separate entities and the Court should not permit the Newlands to eliminate that legal separation to impose their personal religious beliefs on the corporate entity or its employees."
  3. "The Newlands should not be allowed to impose their religious beliefs on the corporation's group health plan or its 265 employees."

Impose? They own Hercules! They are the company's sole stockholders and serve as its corporate officers. They pay for their employees' covered health expenses out of their own pockets. Surely, operating as a close corporation does not strip American citizens of their religious liberties!

Oh yes it does, says the Obama Administration. Indeed, the government takes its claim all the way to the extreme of excluding freedom of religion from anyone in the operation of their business. "By definition, a secular employer does not engage in any ‘exercise of religion,'" the brief states boldly. Any burden on religion arises out of the "choice to enter into commercial activity." In other words, business is a religion free zone. Once we enter the stream of commerce—even if as a sole proprietor—we leave our religious liberties on the dock.

That's only part of the Obama secularization agenda. In another radical move, the DOJ argues that by standing up for their own religious liberties, the Newlands are actually forcing their workers to follow the precepts of the Catholic faith:

The owners of Hercules Industries have no right to control the choices of their company's employees, many of whom may not share the Newland's religious beliefs.

That's topsy-turvy. Refuse-to-pay is not synonymous with prevent-from-obtaining. Medicaid doesn't cover abortion, for example, but that doesn't mean the government is "controlling" the reproductive choices (in the common lexicon) of Medicaid recipients. Otherwise, Medicaid rules would violate Roe v Wade! Similarly, the Newlands are not preventing their female workers from using birth control simply because they don't want to pay for it.

It is important to understand the audacious breadth of the government's argument: To summarize, the administration claims:

  1. Seeking profit is a wholly secularist pursuit;
  2. Hence, once we go into business, we lose our religious freedoms in the context of those activities;
  3. Meaning, that all who engage in such secular undertakings must accede to the precepts of secular ideology;
  4. Which the government establishes through the passage of laws and promulgation of regulations.

Considering the many contemporary cultural controversies that involve religious belief, if the government prevails, it won't only be Catholics whose religious liberties are constrained.

At least for the moment, religious freedom is winning out. District Court Judge John L. Kane issued a preliminary injunction shielding the Newmans and their company from the rule's objectionable provisions pending the final disposition of the case.

But that should not make civil libertarians sanguine. Because the question is one of "first impression," Judge Kane declined to decide at this early stage in the case whether a corporation has freedom of religion (as the Supreme Court has ruled they do freedom of political speech), finding instead that the Newmans were sufficiently impacted personally to justify protection pending trial.

And that raises an interesting and important question: How would a court determine a corporation's "religion" under the RFRA?

Large, publicly-held corporations, such as Google or General Electric, would probably never be found to have a particular religious belief, given that such companies are owned by millions of individual and institutional shareholders who are unlikely to share a common dogma. In contrast, closely held companies like Hercules Industries will often be able to demonstrate that their owners share a common religious belief, which should then also be attributed to the corporate entity for RFRA purposes.

But whether such a reasonable and traditionally religion-tolerant approach to this issue will prevail remains an open question. Should the Administration win the Newland case, naked secularism will reign triumphant over America's traditional government tolerance of religious dissent in the public square.

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We live complex lives. We strive to sort out priorities that sometimes conflict or seem incompatible. A moral framework is needed to help us understand the reality around us. Our Judeo-Christian heritage provides a framework to help us comprehend the choices we make and the conflicts that arise over them. It is not only the main source of our spiritual values, but also many of the secular values we depend on.

tothesource is a forum for integrating thinking and action within a moral framework that takes into account our contemporary situation. We will report the insights of cultural experts to the specific issues we face believing these sources will embolden people to greater faith and action.
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wesley smith   Wesley J. Smith
Award winning author Wesley J. Smith, is a senior fellow at the Discovery Institute's Center on Human Exceptionalism, a special consultant to the Center for Bioethics and Culture, and a legal consultant for the Patient's Rights Council.

He has authored or co-authored 12 books. His Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder (1997), a broad-based criticism of the assisted suicide/euthanasia movement, is currently in its third updated version.

Smith's book Culture of Death: The Assault on Medical Ethics in America, a warning about the dangers of the modern bioethics movement, was named One of the Ten Outstanding Books of the Year and Best Health Book of the Year for 2001 (Independent Publisher Book Awards). His current book is A Rat is a Pig is a Dog is a Boy: The Human Cost of the Animal Rights.
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