“This is the way the world ends,” wrote American-English poet T.S. Eliot, “not with a bang, but a whimper.” Buried somewhere in the top news stories of the day—“U.S. Marine Pens Response to Gun Control Bill,” “Cat Arrested at Brazil Prison,” “Father of India Gang Rape Victim Reveals His Daughter’s Name,” “Candlelight Vigil Planned in Boulder for Slain Bull Elk”—you might have read about Hobby Lobby.
No? That’s not surprising, since many of the major networks have remained largely silent on the issue. Yet this “whimper” of a story might be one of the most significant legislative decisions in our time. Lest you think I overstate my claim, let’s take a look at Hobby Lobby’s case and what’s actually at stake.
As of today, the Green family, the evangelical Christian owners of Hobby Lobby Creative Centers and Mardel Christian Bookstores, potentially owes the federal government $21.3 million in fines for defying the HHS mandate that requires all companies to provide insurance coverage for all FDA-approved prescription contraceptive drugs and devices, surgical sterilizations and abortion-inducing drugs, including “the morning after pill” and “the week after pill.” According to the Greens, since these drugs interfere with implantation in the womb, they destroy human life in the earliest stage of development.
In September, the Greens filed a lawsuit against the federal government, stating, “These abortion-causing drugs go against our faith … We simply cannot abandon our religious beliefs to comply with this mandate.” In addition to the lawsuit, they requested an injunction to defer the $1.3 million (approximately $100 for every employee) daily penalty while their case made its way through the courts.
On November 19, Judge Joe Heaton in Oklahoma denied the company an injunction, stating that Hobby Lobby and Mardel “are not religious organizations” according to the definition proposed in the mandate but are secular, for-profit businesses that employ and serve both Christians and non-Christians. The company appealed the decision to the 10th Circuit Court of Appeals in Denver, and a panel of three judges denied the appeal for similar reasons. The company then took its request to the Supreme Court, where Supreme Court Justice Sonia Sotomayer also denied the request, stating it was not “indisputably clear” that the case met the requirements for an emergency injunction.
The HHS mandate allows religious exemption if the organization meets the following criteria: (1) its primary purpose is to promote religious values; (2) it primarily employs persons of the same religion; (3) it primarily serves persons of the same religion; and (4) it is a nonprofit organization under specific sections of the Internal Revenue Code.
The underlying merits of the HHS mandate is not what’s at stake—that has yet to be determined. What’s at stake in this case is whether or not the government can force private business owners to act against their religious convictions.
If a privately owned company is paying for health care, should the federal government have a say in what is covered? There are three reasons why Christians and non-Christians alike should be concerned about the ruling in the Hobby Lobby case.
1. Let’s define “religious.”
The religious exemption proposed in the HHS mandate is so narrow that the vast majority of faith-based organizations—including Catholic hospitals, charities, colleges, universities and nonprofit organizations—fail to meet the criteria. In a post for Libertyblog, Dan Smyth argues that in order to avoid a breach of our first amendment rights, we must adhere to what the Founders would have understood to be a “religious” organization. According to Samuel Johnson’s A Dictionary of the English Language (1755), the most widely used dictionary at the Constitution’s ratification, Smyth says the Founders understood religious employers to be simply employers who, in any way, are disposed to religious duties or teach religion.
Further, Johnson defines “religious” as “pious; disposed to the duties of religion” and “teaching religion,” with “to teach” taking such definitions as “to instruct; to inform” and “to deliver any doctrine or art, or words to be learned.”
Since the Greens are devoutly religious people who close their stores on Sundays, play Christian music in their stores and sell some religious-themed items, they would be classified as “religious” according to the understanding of the Founding Fathers. Redefining what is a “religious” organization results in a breach of First Amendment rights.
2. Whose responsibility is it?
Second, some critics claim, “No employers in the private sector have the legal right to force their employees to obey their employer’s religious beliefs.” The Greens do not oppose their employees using emergency contraception; they just oppose paying for it. The Greens don’t oppose birth control or even their employees’ right to use emergency contraceptives like “the morning after pill”—they simply don’t want to implicate themselves in what they believe is morally wrong.
To force them to comply with this mandate interferes with the Green family’s right to practice their religion. As Rick Warren said, “Today, the government has tried to reinterpret the First Amendment from freedom to PRACTICE your religion, to a more narrow freedom to worship, which would limit your freedom to the hour a week you are at a house of worship.”
3. The timing matters.
Third, some will say that in the grand scheme of things, the cost of this legislative ruling is fairly low—it hardly matters. Whether the Greens eventually cave to the federal government or whether they pay all the way to their financial grave, it is, after all, just a single company. And besides, some may say, the matter of emergency contraceptives is morally ambiguous anyway.
But in most cases, freedoms have not been lost or won overnight. As James Madison, the “Father of the Constitution” said, “There are more instances of the abridgment of the freedom of the people by the gradual and silent encroachment of those in power, than by violent and sudden usurpation.”
Ultimately, it doesn’t matter whether or not one agrees with the Greens convictions or not. You don’t have to be Christian to understand that this ruling is potentially a watershed moment in our nation’s history. If we, as a free republic, don’t stand now for the freedoms afforded us in our Constitution, who will be next?
Dr. Halee Gray Scott is an author, scholar and researcher. Her research and teaching focuses on theology, spiritual formation and leadership. Her articles have appeared in Christianity Today, Real Clear Religion, Cooks and Culture, Her.Meneutics, Kyria, Gifted For Leadership and Outcomes. She blogs at www.hgscott.com.