Over 92 bills in 32 state legislatures have been introduced to prevent “religious laws” from being used in court decisions–that is, non-Christian “religious laws.” Seven states successfully turned these bills into law, including Oklahoma, where 70 percent of voters in November 2012 supported a ban on Islamic Sharia Law. The Tenth Circuit Court of Appeals quickly struck down this ban to which both houses of the legislature responded by enacting a watered-down version, signed by Governor Mary Fallin in April 2013.
Some of the same supporters of bans against non-Christian “religious laws” are currently seeking to secure the use of Christian “religious laws” in court decisions.
The Tenth Circuit Court of Appeals is poised to rule on whether the religious laws of the Evangelical-Christian owners of Hobby Lobby, a craft-store franchise based in Oklahoma City, can exempt them from the Affordable Care Act. The act mandates that corporations buy insurance covering employees’ contraception. Hobby Lobby’s owners claim that their religious liberty is “substantially burdened” by the legal obligation to subsidize activity they believe is sinful.
The founder of Domino’s Pizza has filed a similar lawsuit, claiming that offering contraception coverage violates Roman Catholic doctrine.
Will the seven state-legislatures that banned the influence of Islamic religious law on court decisions be just as enthusiastic about banning the influence of Catholic or Protestant Christianity?
Setting their sights beyond their goal to allow Christian laws to determine civil ones, Hobby Lobby and Domino’s Pizza are also seeking to create a radically expansive legal definition of a religious employer. They argue that if corporations have free speech rights–as affirmed in the 2010 court case, Citizens United–then corporations also have the right to freely exercise religion and, therefore, should be exempt from any government action at odds with their beliefs.
Currently, the Affordable Care Act exempts an organization from the contraception mandate if it “has the inculcation of religious values as its purpose; primarily employs… and serves persons who share its religious tenets; and is recognized by the IRS as a religious non-profit organization.”
Even if Hobby Lobby and Domino’s Pizza were organized for the purpose of inculcating Christian laws through crafts and pizzas, they do not require religious tests for employment nor do they vet the beliefs of their consumers. Even if all Domino Pizza’s employees and customers were Catholics, they would not share the same worldview. Though the Roman Catholic Church forbids the use of contraception, recent Gallup polls show that 82% of American Catholics view birth control as morally acceptable (as do 87% of Republicans).
As if their double-standard wasn’t blatant enough, the owners of Hobby Lobby gave $500 million in 2012 to Evangelical Christian groups who have historically claimed that when parents use school vouchers, the state is not, indirectly, subsidizing private religious schools. The Hobby Lobby owners and their supporters now claim that when the state mandates insurance coverage for contraception, their corporations are, indirectly, subsidizing sin. In one arena, the Evangelical Christian groups argue that indirect subsidies are constitutional. In another they claim indirect subsidies are unconstitutional. Which is it?
A form of preventive care, contraception provides many medical benefits to employees as well as substantially reduces healthcare costs for employers. Aware of these benefits, 28 states already issue contraception mandates on the grounds that contraception is a compelling state interest.
Still, when “Obamacare” became a political wedge issue, the Religious Right converted religious freedom into a weapon. In dismissing one of the sixty cases challenging the contraception mandate, Federal District Judge Carol Jackson explained that religious freedom “is a shield, not a sword.” She made it clear that liberty “is not a means to force one’s religious practices upon others.”
What consequences will ensue should Hobby Lobby and Domino’s fundamentally change the legal definition of religious liberty from a shield to a sword? Imagine a society where, based on religious grounds, an Evangelical Protestant landlord could refuse to rent to unmarried couples; a Catholic restaurant owner could fire an unmarried chef for being pregnant; a Jehovah’s Witness CEO could remove blood transfusions from her employees’ health care benefits.
Liberty is a vote not a veto.
Owners of for-profit companies have the freedom to vote their conscience, to speak their mind, to persuade and petition and parade in the public square. This free exercise of speech and religion does not give them the right to unilaterally veto the rights of their employees. Doing so would establish a de facto state religion, where corporations become the nation’s congregations and its owners the high priests.
“State Legislation Restricting Use of Foreign or Religious Law.” The Pew Forum on Religion and Public Life. April 8, 2013. http://www.pewforum.org/Church-State-Law/State-Legislation-Restricting-Use-of-Foreign-or-Religious-Law.aspx.
Gedicks, Frederick Mark. “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate,” American Constitution Society. October 2012. http://www.acslaw.org/MichiganReligiousLibertyDiscussion.
Newport, Frank. Americans, Including Catholics, Say Birth Control Is Morally OK. Gallup politics. May 22, 2012. http://www.gallup.com/poll/154799/americans-including-catholics-say-birth-control-morally.aspx.
“Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act.” Federal Register, Rules and Regulations 77:31. February 15, 2012. https://webapps.dol.gov/federalregister/PdfDisplay.aspx?DocId=25828.
Baumann, Nick. “Most of Obama’s ‘Controversial’ Birth Control Rule Was During Bush Years.” Mother Jones. February 8, 2012. http://m.motherjones.com/politics/2012/02/controversial-obama-birth-control-rule-already-law.
“Religious Exemptions.” Sec. 1501, 5000A.d.2. Compilation of Patient Protection and Affordable Care Act. May 1, 2010.http://housedocs.house.gov/energycommerce/ppacacon.pdf.
Author, Nathan C. Walker, is an Ed.D. Candidate in Law, Education, and Religion at Columbia University. He is the co-editor of Whose God Rules: Is the United States a Secular Nation or a Theolegal Democracy? with foreword by former British Prime Minister Tony Blair.
Editor, Myriam Renaud, is a PhD Candidate in Theology at the University of Chicago Divinity School. She is a 2012-13 Junior Fellow in the Martin Marty Center.