Religious Liberty in a Free Society

The Hobby Lobby case is before the SCOTUS.  
Here is an editorial from the NNYTimes followed by my comments on the issue.

Crying Wolf on Religious Liberty


This week, the owners of two secular, for-profit corporations will ask the Supreme Court to take a radical turn and allow them to impose their religious views on their employees — by refusing to permit them contraceptive coverage as required under the Affordable Care Act.

The Supreme Court has consistently resisted claims for religious exemptions from laws that are neutral and apply broadly when the exemptions would significantly harm other people, as this one would. To approve it would flout the First Amendment, which forbids government from favoring one religion over another — or over nonbelievers.

The showdown will take place Tuesday when the Supreme Court hears arguments on two consolidated challenges to the Affordable Care Act. The owners of Hobby Lobby, a chain of arts-and-crafts stores, and Conestoga Wood Specialties, a cabinetmaker, want to be exempted from the sound requirement that employer health plans cover without a co-payment all birth control methods and services approved by the Food and Drug Administration.

These companies are not religious organizations, nor are they affiliated with religious organizations. But the owners say they are victims of an assault on religious liberty because they personally disapprove of certain contraceptives. They are wrong, and the Supreme Court’s task is to issue a decisive ruling saying so. The real threat to religious liberty comes from the owners trying to impose their religious beliefs on thousands of employees.

The legal question is whether the contraception coverage rule violates the Religious Freedom Restoration Act of 1993, which says government may not “substantially burden a person’s free exercise of religion” unless the burden is necessary to further a “compelling government interest” and does so by “the least restrictive means.”

There are several reasons why the court should find that the law does not apply, starting with the fact that secular, for-profit corporations are not “persons” capable of prayer or other religious behavior, which is a quintessentially human activity. Also, as an amicus brief filed by corporate law scholars persuasively argues, granting the religious exemption to the owners would mean allowing shareholders to pass their religious values to the corporation. The fundamental principle of corporate law is a corporation’s existence as a legal entity with rights and obligations separate from those of its shareholders.


Here is my take on this issue.  In a modern free society no one gets to impose their religion on other people or on the public as a whole.  This is what some are trying to do right now under the false pretense of religious liberty.  
Here’s a bit of history.  In 1807 Napoleon convened what he called Le Grande Sanhedrin to establish the relationship of a religious minority, the Jews, with the state.  Years before, in 1789 (the year of the Revolution in case you do not remember it) a Deputy raised the issue of the rights of non-Catholics and others who had been denied civil rights under the Ancien Regime.  He said, ““there cannot be a nation within a nation”, so “the Jews should be denied everything as a nation but granted everything as individuals.”[  Keep this quote in mind.  I’ll be getting back to it.
The basic issue of the Grand Sanhedrin was whether the Jewish authorities would accept liberty if the condition was that French law would supersede Jewish law, especially on matters of marriage and divorce.  In other words would Jews accept the right of an individual Jew to marry a person who would not be permitted (such as a non-Jew) under Jewish law and would the Jews of France accept the right of individual Jews to divorce under French law without having to divorce under Jewish law.  A list of questions before this body are found in
The end result was that the Jewish notables, no doubt reluctantly, accepted the conditions.
The American and French revolutions both overturned the primacy of religious law in civil matters (despite the claims of some Evangelicals these days).  There is a long history of SCOTUS cases involving issues of religious liberty in the context of the Constitution and of American law in general.  There was Barnett v Bd. of Ed. of WV; the Two Guys case; the Smith case (about peyote use by Native Americans), and much, much more.  In every case that I can think of the court decided to limit the rights of religious individuals when they constituted an imposition on the rights and liberties of others.  “There cannot be a nation within a nation.”
These new cases are about the right of businesses to deny service or government-supplied benefits to people who they find objectionable (gays) or whose personal decisions (like birth control) are not compatible with the beliefs of the owners.  I can remember all too well that there were Jewish quotas and restrictions on Jews in housing, employment, and education until the passage of the Civil Rights Bill of 1964.  It was never just about race.
I know that the lion’s share of my federal income tax payments go for an institution that I find utterly immoral – wars past, present, and future.  Nonetheless I pay that tax.  I even testified before a House committee saying so (hearings on the Peace Tax Bill – yes, I am in the Congressional Record).  I do not feel my rights are infringed because of that.  As a citizen I pay my share.
What we are seeing are attempts to go back before 1964 and, in some ways, before the Bill of Rights.  The owners of these businesses have the right to their beliefs.  They are not entitled to impose those beliefs on the rest of us, not even on their employees.  To allow this kind of reversal on religious liberty is to take a giant step backwards.


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