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September/October 2014

Discover more articles from this issue.

Off With Their Heads

Religious freedom has never been more needed than now. The fleeing columns of Christian refugees attest to its lack.

The Long Journey to Religious Freedom

Every promoter and defender of religious freedom should once in a while visit a few historical sites related to the struggle. It will inspire them. This is...

Freedom Classroom

Passing On the Principles of Religious Freedom

Known for Action

The Church State Council Celebrates 50 Years.

Religion Is Not a Hobby

The Supreme Court Rules on Obama Care and Contraception

True Justice

Christians may take comfort in knowing that there exists a truly Supreme Ruler, access to whom is unhindered by financial or pragmatic considerations and technicalities, whose justice, unlike the crude secular variant, is pure, inerrant and without blemish or influence from an imperfect world.

​When Reasonable Accommodation Is Not - Part 3: Title VII and Beyond

Although an accommodation should not favor one religion over another, an accommodation is not suspect if it only reaches one religion.

Magazine Archive »

Published in the September/October 2014 Magazine
by Nicholas P. Miller

Attorney Miller wrote a more detailed outline of the Hobby Lobby case for our last issue (“Is Religion a Hobby?”). This post-Court decision piece is labeled an “opinion” piece because the case can be taken so many ways, not because I feel that his analysis is incorrect. What needs to be understood well is the political and cultural context of the case. Even a “good” decision may in fact be part of a much larger shift and the consequences not entirely predictable along legal and social lines. —

On the last day of June the Supreme Court handed down one of the most anticipated results of this year, affirming that business and corporate owners do possess rights of religious freedom under federal law. Running a business or filing as a corporation does not mean that one must set aside one’s basic religious convictions. The religious beliefs of businesses, at least those that are closely held by persons or families with strong religious identities, will receive protection from federal legislation.

Much was at stake in this case, as there have been growing conflicts between various businesses operated by people of faith, and the increasingly secular legislation of modern America. The Court’s ruling is being generally criticized in popular media. But much of the criticism is based, I believe, on either misunderstandings of the decision or an underlying ideology that is opposed to religion. Consider the following points:

1

First, the basic principle the Court has vindicated is straightforward, untroubling, and indeed important: persons of faith do not leave their beliefs behind when they enter the business world, either in unincorporated or incorporated form. The whole argument over corporations as persons is really irrelevant, despite all the attention it is getting. Religious not-for-profit institutions are also corporations, and nobody suggests that they should not get religious freedom.

The critical distinction is whether the entity is organized for profit or not. While the dissent spends a long time mulling over the corporate status, ultimately, if you look at their concluding paragraph, they are concerned about the profit purpose for the enterprise. But this is a very strange distinction. On this basis, we would not protect the religious freedom of employees, because they are working for money, not for a religious purpose. Why is it that employees get their religious convictions protected, but employers, those who own the corporation, do not? To install a rule as proposed by the dissent would be to prevent Christians and other persons of faith from meaningful presence as owners and leaders in the business world as our regulatory environment becomes increasingly secularized.

2

Second, the Court’s decision is limited in a way that just does not make the parade of horribles proposed by the dissent meaningfully realistic. The dissent appears to be provoked in part by their ideological commitments to feminist views regarding reproductive rights and birth control choice. The fact is that the majority opinion assumed that access to this kind of medical care is in fact an important state interest. What they found, however, was that there were “less restrictive means” of achieving it. Nobody would be denied access to these health benefits; the issue is who would pay for them, the company, the government, or third-party insurers. Nobody proposed that the women themselves would need to pay.

The majority suggested that the government might pay, or third-party insurers cover the expense, which is what is already done for not-for-profit religious corporations. The existing exemptions, in my opinion, should caution anyone from viewing this case as troubling. It merely extends an existing exemption that does not deny anyone coverage, to a somewhat broader group of entities. The Court majority carefully distinguished this decision from people who would deny vaccination coverage, which like blood transfusions, would implicate important health concerns for many persons, and for which no existing exemption exists.

3

Third, the majority simply did not say that the religious convictions of employers might trump the rights of employees or other individuals. Indeed, they assert that third-party rights are very much a concern in these situations, and that statutes regarding racial, ethnic, and other types of discrimination would continue to provide a compelling interest. It is unlikely, the Court said, that there would be other “less restrictive means” of enforcing these statutes than actually requiring employers to follow them. Thus, any speculation that the religious rights of employees, such as rights to Sabbath observance or other religious accommodation, are simply unfounded.

4

Finally, I think the unspoken agenda of much of the media and elite opinion on this case is driven in part by concerns over the gay rights agenda. This case will bring a greater balance to the contest between religious rights and gay rights. That will be, in my opinion, a good thing. I think this is what is most important about the Hobby Lobby case, that it has given much greater protection to Christian businesses in dealing with gay rights issues. It does not mean that religion will always trump gay rights; but it will mean that gay rights will not always trump religion, which is what has basically been happening.

The Hobby Lobby majority relied entirely on the Religious Freedom Restoration Act—which applies only to the federal government—and not the First Amendment, which applies also to state governments. Thus, this decision does not create a general protection from state regulations for private businesses and their religious convictions. It should be very persuasive precedent, however, for interpreting any state Religious Freedom Restoration Act. There are quite a number of these acts, and a lot of the florist/photographer/bakery versus gay marriage cases that have appeared in the news during the past year will now come out in a way that protects the rights of religious business owners. In all of these instances there have been other vendors who could supply the desired services, and thus there was no “least restrictive means” requirement to insist that the Christian vendor provide the service.

Indeed, the Court may well have not taken certiorari earlier this year on the photography versus gay marriage case out of New Mexico because Hobby Lobby essentially decides that case, and in the right direction for people of faith. Some will not like this outcome, but it is one of the few legal breaks for people of faith in the recent past in a legal and political environment that has become increasingly and aggressively secular.

Could this ruling have some unintended consequences? Could it lead to the assertion of corporate religious interests over the consciences of employees? One suspects that business and corporate interests will try at times to push it in this direction. Perhaps they may find a judge or two sympathetic to their goals. But there is no reasonable basis in the decision to justify such outcomes, and no real threat of them gaining any real traction. On the contrary, Justice Kennedy’s concurrence makes it clear that he sides with the dissent in ruling that the health-care services involved do represent a compelling interest, and the rights of women to these services must be protected.

That Justice Kennedy is the swing vote should remind people that the Court is not poised to engage in a radical shift of religious rights from individuals to corporations. His concurrence signals that he will join the dissent if such an attempt is made. In the meantime, the faith community owes the Green family and their legal allies a debt of gratitude. Because of their commitment, faithfulness, and perseverance in standing for their religious beliefs, religion will not be just a hobby that must be left in the lobby whenever one enters the business world.

Author: Nicholas P. Miller

Nicholas Miller, Ph.D., is an attorney and associate professor of church history at Andrews University, Berrien Springs, Michigan. He is the author of the The Religious Roots of the First Amendment (New York: Oxford University Press, 2012), which more fully develops the theme of this article.

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