This week, the Supreme Court will consider whether businesses and their owners must choose between paying millions of dollars in fines and violating their religious beliefs. The outcome of the combined cases, popularly styled Sebelius v. Hobby Lobby, will shape how government interacts with religious Americans for decades to come. It is no overstatement to say that an adverse outcome would banish from public life many Americans who wish to go on operating their businesses in accordance with their religious beliefs, as they have for decades.
But a funny thing happens if you pick up a newspaper covering these cases. The leftist papers do not mention the substantial monetary burden put on religious business owners to violate their consciences. The papers do not mention that contraception was both inexpensive and widely available before the contraception mandate, and still is. The papers omit to mention that it isn’t the businesses who have radically changed, but the mandates from government.
Quite simply, if you read a newspaper to find out about the contraception mandate cases, you will read lies. Here are the top six.
Lie 1. The contraception mandate cases are about women’s rights.
The New York Times’ Adam Liptak puts it right there in the first sentence: “The Supreme Court on Tuesday will hear arguments in a case that pits religious liberty against women’s rights.” This could not be further from the truth. Women will have the same constitutional rights to acquire and use contraception regardless of whether Hobby Lobby wins or loses. More than that, they’ll have the exact same rights as they had before the contraception mandate was a gleam in Sec. Sebelius’ eye. What women won’t have is the right to force other people to pay for their contraception, but that has never been a right recognized by the Supreme Court.
In the Bizarro World of the newspapers, not paying for someone else’s contraception is the same thing as prohibiting them from purchasing and using them themselves. This is an obviously false equivalence, but one that leftists are bent on telling themselves. No matter how many times you point out that the business owners in these cases aren’t preventing their employees from purchasing and using contraception, a smug leftist will smile and say “but women’s rights, you see,” as if these magic words excuse the lie.
Lie 2. The contraception mandate cases are about gay rights.
In USA Today, Human Rights Campaign’s Chad Griffin and Planned Parenthood’s Cecile Richards paint a picture of a world where a decision in favor of religious owners’ decision not to provide contraception coverage unleashes numerous horrors unrelated to contraception coverage, including the possibility that businesses could turn away gay customers. Setting aside the fact that it is already legal for businesses to turn away gay customers in more states than not, this is the classic reductio ad absurdum, wherein letting businesses continue to operate as they have for decades will somehow unleash an apocalypse of discrimination heretofore avoided.
In fact, the Religious Freedom Restoration Act (“RFRA”), the law that will decide this case, holds that each time people challenge law as a violation of religious freedom, their interest must be weighed against the government’s interest. There is no one-shoe-fits-all approach to religious freedom challenges, and any liberal telling you otherwise is simply trying to gin up popular hysteria.
Lie 3. The contraception mandate cases are about for-profit corporate rights.
Let’s flip back to the New York Times. Liptak repeatedly emphasizes that this case involves for-profit corporations seeking special treatment. This is a red herring. The beliefs of Hobby Lobby’s owners are just the same as the beliefs of thousands of owners of non-profit corporations who Sec. Sebelius exempted from the mandate. Importantly, the First Amendment’s free exercise clause and RFRA protection of religious belief does not carve out people who organize in certain corporate forms. Indeed, the corporate form goes unmentioned in both the free exercise clause and RFRA.
Liberals seem focused on the “for-profit” characterization of the businesses involved in this case because, by exempting thousands of non-profits from the mandate, they’ve little else to stand on. I’m sure the leftist bias against profit also plays a role.
Lie 4. Corporations cannot exercise religion.
This Sunday’s New York Times took a particularly harsh tone when criticizing businesses that operate according to their owners’ religious beliefs, claiming: “for-profit corporations are not ‘persons’ capable of prayer or other religious behavior, which is a quintessentially human activity.” Again, note the emphasis on “for-profit,” because it is indisputable that non-profit corporations are capable of “religious behavior.” Look no further than, say, my former employer the Roman Catholic Diocese of Tulsa, which like all dioceses in the United States is legally organized in the corporate form.
As with speech rights, individuals do not give up their religious rights when they incorporate, for whatever purpose. In the Hobby Lobby case, where the organization’s mission statement explicitly included a charge to operate in accord with the owners’ religious faith, there can be no question that the corporation was intended to further the “quintessentially human activity” of religious behavior. It is astonishing that leftists cannot grasp the simple truth: corporations are made up of people.
Lie 5. Corporations are asking for dangerous new rights.
When all else fails, expect leftists to portray something they don’t like as harmful and new, even if it’s really old and innocuous. That’s just what Talking Points Memo’s Sahil Kapur did when he suggested that a ruling in favor of religious liberty would be “a slippery slope to lawlessness.” In fact, the plaintiffs in these cases are simply asking for things to go back to the way they were in 2009, when they weren’t compelled by law to violate their religious consciences.
It is not a radical departure from the norm for businesses to pick and choose what health coverage they provide. In fact, that was the norm for decades. What was new and harmful and possibly part of a slippery slope to lawlessness was the decision of Sec. Sebelius to impose her will on businesses, for the first time demanding that they provide morally objectionable coverage or face crippling penalties.
Lie 6. Government has a compelling interest in forcing companies to provide birth control.
To survive a challenge under RFRA, the government must demonstrate a “compelling governmental interest” and employ the “least restrictive means” of furthering that interest. That’s why a great deal of coverage, and indeed the government’s own briefing, is devoted to claiming that birth control is an unmitigated good and direly needed by women who will somehow be unable to get it if religious businesses aren’t forced to provide it.
This claim is complete bunk. First, the vast majority of businesses provided contraception coverage for their employees before the mandate became effective and continue to do so now that it has. Only a small number of businesses, most of which are not very large, are seeking an exemption based on their religious belief. Second, Sec. Sebelius has already exempted 190 million people from the contraception mandate, either because they work for non-profit corporations or because their plans were “grandfathered” when Obamacare became effective.
In short, when 190 million people are purposefully exempted from a law, there can be no argument that it is aimed at a compelling purpose. Providing broad exemptions intended to go on in perpetuity demonstrates that the contraception mandate is the opposite of compelling.
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