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God versus Government


Freedom of religion is the most powerful constitutional protection left in America. It is on a collision course with the contraception mandate in the Patient Protection and Affordable Care Act (Obamacare). The mandate requires employers with more than 50 workers to provide health plans that include contraceptives and abortion-inducing drugs.

Many employers object to paying for practices prohibited by their religious convictions. In response, Obamacare declares that for-profit businesses have no right of religious freedom and that abiding by the government’s values rather than their own is the cost of doing business in America.

A queue of faith-based legal challenges are wending toward the United States Supreme Court. The first to arrive may well be O’Brien v. U.S. Department of Health and Human Services.

In October, O’Brien was dismissed by a federal district-court judge, and an appeal was filed immediately. On November 28, the U.S. Court of Appeals for the Eighth Circuit became the first appellate court to temporarily block implementation of Obamacare’s contraception mandate by granting an injunction.

The stay order, issued by a three-judge panel, means that Frank O’Brien — a practicing Catholic and the private owner of the Missouri mining firm O’Brien Industrial Holdings (OIH) — will not have to implement the Mandate until or unless he loses his appeal. Another, less likely possibility is that the Obama administration could request a review by the full Eighth Circuit.

Why is the review request less likely? For two reasons. First, the Eighth Circuit is notoriously conservative. Second, the O’Brien decision comes two days after the Supreme Court revived a lawsuit against Obamacare brought by a Christian university. On September 8, 2011, the Fourth U.S. Circuit Court of Appeals had dismissed Liberty University v. Geithner without ruling on its merits. Now, a year later, the Supreme Court has taken the unusual step of returning the case to the appellate court for reconsideration.

The fundamental issues of O’Brien

O’Brien’s claims are simple. The lawsuit brought on his behalf by the pro-life American Center for Law and Justice states, “O’Brien wishes to conduct his business in a manner that does not violate the principle of his religious faith” (PDF).

The OIH website describes the corporation’s mission as making “our labor a pleasing offering to the Lord while enriching our families and society.”

O’Brien’s lawsuit concludes,

by requiring him to choose between conducting his business in a manner consistent with his religion, or paying ruinous fines and penalties, the Mandate violates his rights under the First Amendment, [and] the Religious Freedom Restoration Act.

The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” The O’Brien lawsuit claims that Obamacare directly violates the constitutionally protected freedom of religion and speech.

The Religious Freedom Restoration Act prohibits the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it can demonstrate “that application of the burden to the person (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

O’Brien argues that Obamacare substantially burdens his expression of religion without furthering a compelling governmental interest. Nor is it the least restrictive means of furthering the alleged interest.

In short, Obamacare is accused of violating both religious freedoms and federal statutes.

The Obama administration has made a variety of counter arguments not only against O’Brien but also against other faith-based challenges.

The Obama administration response

The administration claims that OIH and other businesses owned by the devoutly religious do not qualify for an exemption. Such exemptions are narrowly defined and apparently designed for houses of worship. OIH, they maintain, is a for-profit, secular enterprise through which religion is not being exercised. Therefore, First Amendment protections do not apply.

The disagreement hinges on one question: “What is the exercise of religion?” In Breitbart (Nov. 25), legal contributor Ken Klukowski commented,

If you agree with the Obama administration that the Constitution only protects freedom of worship — which is usually confined to what you do on Sunday morning in a church building — then you might think the HHS Mandate is okay.

If instead you agree with the Framers of our Constitution that religious exercise includes living out your faith in your daily life, then you would find it appalling that the federal government would order a business owner to subsidize something he considers immoral, and possibly even participating in the ending of an innocent human life.

In response to the accusation of violating the Religious Freedom Restoration Act, the administration claims Obamacare does not impose an undue burden upon specific religions because it is a “facially neutral law.” That is, the law is applied to everyone equally. But this misses the point.

The act explicitly prohibits “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” (emphasis added). For example, a law requiring all businesses to open on Saturdays might be neutral, but it would require Orthodox Jews to abandon their religious duty to observe the Sabbath. The law would have what is called a “disparate impact” on Orthodox Jews.

Disparate impact is a legal theory of liability. It refers to a neutral policy that disproportionately impacts a group of people in a negative manner and thus, allegedly, discriminates against them.

Elsewhere, the administration argues adamantly that any disparate impact is a violation of civil rights. Obama’s government has aggressively pursued disparate-impact lawsuits to increase the presence of women and minorities in organizations throughout society. The administration cannot now impose a disparate impact except in sheer hypocrisy.

Throughout its arguments, the administration uses  ideological sleight of hand, in which religious rights are pitted against so-called civil rights. It describes the Obamacare contraception coverage as a woman’s “right,” and the government also claims the coverage is a worker’s “right,” because health benefits are part of what is being earned along with wages. According to the administration, employers with faith-based objections are not expressing freedom of religion; they are practicing religious discrimination, as well as violating the rights of women and workers.

The real issue of rights is being buried by this linguistic trick. Limiting freedom of religion to places of worship and excluding it from everyday activities does not prevent religious discrimination; it is religious discrimination and a denial of First Amendment protections.

Living according to your own beliefs is not discriminating against others; it is religious expression. Those who try to prevent the peaceful expression of belief are the ones discriminating.

The rights being claimed for women are a deception. No one has the right to medical care at the expense of someone else. That is an entitlement.

The same is true of the rights claimed for workers. No one has the right to a specific wage or benefit beyond what is freely negotiated between an employer and an employee.

Orwell himself would have been impressed by the Obama administration’s doublespeak.


O’Brien seems destined to be heard by the Supreme Court. But a Supreme Court ruling on freedom of religion is a high-risk gamble that could strike down not merely the health-care mandate but indeed the entire health-care program.

What are the odds? In June, the Supreme Court upheld Obamacare on one specific but crucial point; it found Obamacare to be a tax that fell within the constitutional powers of Congress. In a surprise move, the conservative Chief Justice John Roberts joined with four liberal judges in the five-to-four vote.

Nevertheless, in the same decision, Roberts joined with conservative judges to reject the argument that Obamacare fell within the jurisdiction of the Commerce Clause. In short, the Supreme Court is deeply divided on various aspects of this law. And O’Brien raises the most powerful challenge of all: the right of a man to obey his conscience.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).