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Nonprofits’ victory in HHS cases no slam dunk

by Al Kresta

KrestaIn a 5-4 decision, the U.S. Supreme Court forced the Obama administration to stop threatening corporations like Hobby Lobby and Conestoga Wood Specialties with crippling fines designed to force compliance with the administration’s policy or to drive them out of business. Why the heavy hand? Because the owners of these corporations refused to include abortion-inducing contraceptives in their health insurance plans.

Hobby Lobby is owned by the five members of the Green family, who are committed evangelical Christians. What began in 1970 in the family garage as a small portrait-framing business today employs about 13,000 workers at more than 500 stores across the country.

The Greens try to run their business as disciples of Christ. For example, they are closed on Sundays. Tithe to charities. Refuse to carry products that encourage immorality and celebrate Christmas and Easter with full-page ads in newspapers.

Further, the Greens provide a generous company health plan that includes coverage for most contraceptives. They draw the line, however, on contraceptive methods that destroy a fertilized ovum. Their faith prohibits them for complicity in abortions that can be caused by four of the drugs and devices required by the HHS mandate.

Conestoga Wood Specialties is owned by Norman and Elizabeth Hahn and their three sons. They are Mennonites who operate a Pennsylvania wood cabinet and specialty products firm started by Norman’s father in 1964. The Hahns also seek to carry out their business according to biblical principles that include protecting the sanctity of human life.

The federal government failed because it couldn’t prove that its aim to provide free contraception trumped the Greens’ and Hahns’ free exercise of religion. The Obama administration is required by law to find the least restrictive means to achieve their contraceptive goal.

Christians and members of other faiths who feared the Department of Health and Human Services had widely overstepped its bounds breathed a collective sigh of relief. Fine, but temper the celebrations. This was a narrow victory in at least two ways. First of all, 5-4 is narrow. If Justice Kennedy had changed his mind, victory would have become tragic defeat. Shockingly, the four dissenting justices showed little appreciation for the traditional belief that religious liberty is our first and most cherished freedom.

It is also narrow in that the decision applies only to “closely held corporations,” i.e., corporations held by no more than five shareholders. So the decision won’t touch Microsoft, General Motors or similarly structured corporations.

More significantly, however, the decision does not protect the thousands of religious nonprofits, including Ave Maria Communications (where I serve as chairman), Priests for Life, Little Sisters of the Poor, EWTN or the Archdiocese of New York. Our cases won’t be taken up by the Supreme Court until next year.

Some have mistakenly assumed that since secular for-profit corporations like Hobby Lobby won, religious nonprofits will win. Not so fast. President Obama extended an accommodation to the religious nonprofits; no similar accommodation was offered to the for-profits. Will the Supreme Court regard the accommodation for nonprofits as the least restrictive intrusion on the religious liberty of EWTN, Ave Maria, Little Sisters of the Poor, etc., and, therefore, no serious threat to their free exercise of religion? We don’t know.

Justice Kennedy may be hinting so. On the other hand, Justice Alito made it clear the government can’t determine what measures are religiously objectionable. The government doesn’t even have jurisdiction to determine if religious beliefs are sincerely held. All the government must do is meet the high standard of proving that it has, not merely a rational purpose for restricting religious liberty, but a “compelling interest” in so doing, and that it is using the least restrictive means to infringe on the free exercise of religion.

Misunderstandings abound. Does the decision gives unscrupulous people a blank check to avoid legitimate social responsibilities by sniffing that such and such is “against my religion”? Not at all. Free exercise of religion has never been treated as an inviolable moral absolute. In 1976, Bob Jones University lost its tax-exempt status for prohibiting inter-racial dating on biblical grounds. Last year a married couple was convicted of involuntary manslaughter for praying rather than getting medical help for their 2-year-old son. Religious landlords must rent to co-habiting couples whom they regard as “fornicators.” Restaurant owners have no religious right to deny service to blacks.

Some claim Catholic bishops are trying to prohibit contraception by law. Rubbish. Representing the USCCB, Archbishop William Lori told Congress: “This is not a matter of whether contraception may be prohibited by the government. This is not even a matter of whether contraception may be supported by the government. Instead, it is a matter of whether religious people and institutions may be forced by the government to provide coverage for contraception or sterilization, even if that violates their religious beliefs.”

This is a fight over governmental coercion and overreach. Five members of the Court get it. The remaining four, however, failed to grasp religious liberty as our first freedom. This is sobering.

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