As everyone knows by now, the Supreme Court has just held in Burwell v. Hobby Lobby (discussed here) that requiring the owners of a closely held family business to provide employees abortifacients that violated their sincerely held religious beliefs was barred by the Religious Freedom Restoration Act (passed virtually unanimously by a Democrat-controlled Congress and signed by a Democratic president in 1993). That act provides that substantial burdens can be placed on religion only when a no less burdensome method of achieving a compelling governmental purpose is available.
This rather unremarkable result has been greeted by the left’s customary hysteria, most of it featuring renewed chanting of the “War on Women!” mantra characterized by a deep misunderstanding of corporations, both profit and non-profit. Largely unappreciated amid all this sound and fury over whether corporations are “persons,” however, lie some serious threats to an important segment of higher education, religiously affiliated colleges and universities. These threats have been imminent ever since Obama came to office (for discussions of those threats see “IS ANOTHER FUROR OVER RELIGIOUS LIBERTY COMING?” and “OBAMA’S END RUN AROUND ENDA”), but now they are much more clear and present. According to the Becket Fund For Religious Liberty there are 27 institutions of higher learning currently involved in litigation against the HHS mandate. (A list of the institutions and all other pending cases is here.)
The core of Justice Ginsburg’s dissent is her heated denial that “a corporation qualifies as a ‘person’ capable of exercising religion.” She obviously means for-profit corporations, since many churches and religious organizations that exercise religion are corporations, and it is this Manichean dualism between types of corporations — a dualism that goes far beyond their different treatment by the tax laws — that has been most wildly cheered by the left.
Both Mother Jones’s list of the 8 Best Ginsburg Lines and the Americans Against The Tea Party’s list of “the Top 5 Best Lines From Ginsburg’s Dissent on Hobby Lobby Atrocity” feature the following quote:
Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.
“The Court forgets,” Justice Ginsburg claims, “that religious organizations exist to serve a community of believers,” and she accuses the majority of being obtuse: “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
A good reason is that this absolute dichotomy between for-profit corporations and non-profit organizations that “exist to foster the interests of persons subscribing to the same religious faith” simply does not exist. “This claim is obviously false,” Ramesh Ponnuru has pointed out. “Many, many religious organizations do not understand their purpose as merely fostering the interests of coreligionists. And they may hire from outside the faith without ceasing to have religious missions.”
Among the many religious organizations that would not recognize themselves in Justice Ginsburg’s description are a number of religious colleges and universities. Has the fact that Notre Dame, Wheaton College, The Catholic University of America, East Texas Baptist University, Colorado Christian University, and the 22 other institutions currently engaged in litigation against the HHS mandate are “religious organizations” really escaped Justice Ginsburg’s attention? Or does she not regard them as religious organizations at all because they both comprise, and exist to serve, a far more diverse collection of people than the “community of believers” to which she seems to think they are limited?
Religious colleges and schools are not the only non-profit religious organizations that do not fit Justice Ginsburg’s straightjacketed definition. The Employee Handbook of Catholic Charities, for example, states that it is “an equal opportunity employer and prohibits discrimination against applicants and employees on the basis of any legally protected status.” The national office for Catholic Charities agencies nationwide takes pride in the fact that its “members provide help and create hope for millions of people a year, regardless of their religious, social, or economic background…. The mission of Catholic Charities is to provide service to people in need, to advocate for justice in social structures, and to call the entire church and other people of good will to do the same.”(Emphasis added)
Nevertheless, because of attitudes like those expressed in Justice Ginsburg’s Hobby Lobby dissent, and vociferously endorsed by liberal and leftist acolytes, many Catholic Charities around the country have been forced to close their doors. Typical was President Obama’s home state of Illinois, where they closed down because they refused to place children with persons in same-sex relationships as foster or adoptive parents. “In the name of tolerance, we’re not being tolerated,” said Bishop Thomas J. Paprocki of the Diocese of Springfield, Illinois. According the the Becket Fund list of current litigation, there are 22 Catholic Charities from around the country engaged in challenging the HHS contraception mandate.
On July 3, almost immediately on the heels of its Hobby Lobby decision, the Court granted an injunction against the enforcement of the administration’s “accommodation” contraceptive mandate against Wheaton College while its objections to the mandate are being litigated. Wheaton is an evangelical Christian institution that claimed (along with many other religious non-profits; see the Becket Fund list linked above) that the forms required by the “accommodation” were themselves an impermissible burden on its religion. Justice Sotomayor wrote, and the two other female justices signed, a remarkably bitter dissent to injunction, going so far as to accuse the majority of going back on its word.
Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might … , retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.
That is pure bunk. The Hobby Lobby majority emphasized that it was taking no position on the legality of the accommodation, relying on it only to establish the fact that the administration had already accepted a less burdensome approach to religious objections than the one it insisted on for Hobby Lobby. That it is less burdensome does not necessarily mean it is the least burdensome approach, which is what the Religious Freedom Restoration Act requires.
What is perhaps most interesting about this latest wrinkle in the contraception mandate wars is that the administration had filed a brief on July 2 revealing its determination to fight any effort to accommodate (or increase the already offered accommodation) for religious non-profits. As veteran Court observer Lyle Denniston points out, the administration “made clear that officials will continue to resist efforts by non-profit religious institutions to gain a complete exemption from the pregnancy prevention mandates of the new federal health care law.”
It is important to note that the Obama administration does not want compromise with those who object on religious grounds to the contraceptive mandate. Nothing in the Obamacare act that Congress passed imposes that mandate on religious groups; that is done via administration regulations. The White House has issued so many Obamacare emendations, amendments, delays, and waivers — to entire states, some unions, companies, and others — that even close observers cannot agree on the number, but religious groups have been treated much more stringently. Indeed, the White House has seemed more willing to compromise with Iran, Syria, and even al-Qaeda than with sincere religious objectors to a couple of abortifacients it wants all employers to provide.
As I have noted before (“Does Sexual Equality Require Preferential Treatment?”), perhaps the best indicator of the lapsed Constitutional law lecturer in the White House’s view of the tension between sexual and religious liberty is his nomination of Chai Feldblum to the Equal Employment Opportunity Commission. Although she disavowed a few of her more radical views, such as calling for the legal recognition of “queer couples who decide to jointly create and raise a child with another queer person or couple, in two households,” she steadfastly continued to maintain that sexual freedom should virtually always prevail over religious liberty when the two come into conflict, “because that’s the only way that the dignity of gay people can be affirmed in any realistic manner.”
I understand why gay people would be hurt and angry, and others offended, by the refusal of Catholic Charities to place children in same-sex households. What is not clear is how “the dignity of gay people” is somehow enhanced by forcing all those adoption and social welfare agencies to close. What about not only the dignity but the health and well-being of all their abandoned clients?
So far as I know no government agency is threatening to force Wheaton College, Notre Dame, the Catholic University of America, and the assorted other Baptist and Christian colleges who object to the HHS contraception mandate to close. But those celebrating Justice Ginsburg’s and Justice Sotomayor’s dissents would like nothing better than to force them all to choose between honoring their religious convictions and paying stiff fines or forfeiting all government contracts. In a country characterized by comity and tolerance, that would be intolerable.