Former New York Times editor in chief Bill Keller snidely took on the Christian family who runs Hobby Lobby, which is resisting on religious grounds the contraceptive mandate in Obama-care. Keller took a dim view of his argument of religious freedom, reflected in the text box of his Monday column [1]: "Stretching religious freedom to the breaking point." Keller also worked in an arbitrary crack against religion in general at the end.
The family who owns Hobby Lobby filed suit, arguing that the Obama-care mandate would “violate their faith by covering abortion-causing drugs or be exposed to severe penalties.” Obama-care (aka The Affordable Care Act) mandates contraceptive coverage in employees' health care, including "morning-after" pills and other drugs that some pro-life activists consider abortifacients.
David Green, who built a family picture-framing business into a 42-state chain of arts and crafts stores, prides himself on being the model of a conscientious Christian capitalist. His 525 Hobby Lobby stores forsake Sunday profits to give employees their biblical day of rest. The company donates to Christian counseling services and buys holiday ads that promote the faith in all its markets. Hobby Lobby has been known to stick decals over Botticelli’s naked Venus in art books it sells.
And the company’s in-house health insurance does not cover morning-after contraceptives, which Green, like many of his fellow evangelical Christians, regards as chemical abortions.
“We’re Christians,” he says, “and we run our business on Christian principles.”
This has put Hobby Lobby at the leading edge of a legal battle that poses the intriguing question: Can a corporation have a conscience? And if so, is it protected by the First Amendment.
Conservatives dismissed as a fig leaf Obama's non-compromise "compromise," recently announced, that calls for churches and other religiously affiliated institutions to offer stand-alone [2] private insurance policies providing birth control coverage, but at no cost, the bill to be magically paid by insurance companies, apparently without any other ramifications, like higher premiums. Keller, in contrast, thought Obama's move unnecessarily expedient. He went on:
You can feel some sympathy for David Green’s moral dilemma, and even admire him for practicing what he preaches, without buying the idea that la corporation, c’est moi. Despite the Supreme Court’s expansive view of the First Amendment, Hobby Lobby has a high bar to get over -- as it should.
For one thing, under Title VII of the Civil Rights Act -- which was enacted at the behest of religious groups -- companies cannot impose religious tests on their employees. They can’t hire only Catholics, or refuse to hire Catholics. They cannot oblige you to practice the same faith their owners do. Companies are, by legal design, zones of theological diversity and tolerance. So Green, whose company is privately held, can spend his own money to promote his faith, but it would be an act of legal overreach to say that he can impose his faith on his employees by denying them benefits the government has widely required.
....
I don’t know what the courts will say, but common sense says the contraception dispute is more like taxation than conscription. Nothing in the Obamacare mandate obliges anyone to use contraception if, for example, she is in the tiny minority of American Catholics who take the church’s doctrine on birth control seriously. And Hobby Lobby’s policy doesn’t prevent the use of morning-after pills: it just assures that if an employee does use emergency contraception, she pays for it out of her Hobby Lobby paycheck rather than her Hobby Lobby insurance.
Tom Maguire challenged Keller's "common sense [3]."
Hmm, does Mr. Keller's common sense oblige him to read the Religious Freedom Restoration Act? That is the current law of the land, passed overwhelmingly by a Democratic House and Senate in 1993 and signed by Bill Clinton. Among its requirements:
(b) Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
There are serious questions about whether, in a land of free family planning clinics, the employer insurance mandate is the least restrictive means of accomplishing this governmental goal. Maybe an employer mandate looks less like conscription and more like a tax, but a tax to fund clinics would really look like a tax, and is consistent with current policy.
Keller went on to mock the very idea of making a stand on religious freedom.
But [UVA law professor Richard] Laycock’s is a lonely voice among advocates of religious exemptions. More typical is Rick Warren, the evangelical megachurch pastor, who says the battle to preserve religious liberty “in all areas of life” may be “the civil rights movement of this decade.” Warren goes on to say -- I am not making this up -- that “Hobby Lobby’s courageous stand, in the face of enormous pressure and fines,” is the equivalent of the Birmingham bus boycott.
When I read that kind of rhetoric from our country’s loftier pulpits, I understand why the fastest-growing religious affiliation in America is “none.”