Washington Post columnist Kathleen Parker baselessly criticized President Obama for his administration's “willingness to challenge, rather than protect, religious liberty in this country,” citing right-wing legal challenges to insurance coverage of birth control under the Affordable Care Act (ACA) and a lawsuit that was filed by the previous administration, not the current one.
In a recent column, Parker complained that Obama's decision to speak out against attacks on religious freedom overseas during the National Prayer Breakfast was done “without a hint of irony,” because Obama failed to mention the “eroding protections of religious liberty” in the United States. Parker pointed to several high-profile cases as evidence of the Obama administration's supposed “challenge [to] religious liberty in this country.” Parker overlooked the fact that the right-wing legal arguments that form the basis of these cases are a radical departure from settled corporate law precedent and the "well-established" religious accommodation practice for objectors toward neutral laws like the ACA's “contraception mandate.” Parker also went on to claim that a separate Supreme Court decision in 2012 that ruled in favor of a church's discriminatory hiring practices was further evidence of the Obama administration's attack on religious liberty:
President Obama gave a lovely speech at the recent National Prayer Breakfast -- and one is reluctant to criticize.
But pry my jaw from the floorboards.
Without a hint of irony, the president lamented eroding protections of religious liberty around the world.
Just not, apparently, in America.
Nary a mention of the legal challenges to religious liberty now in play between this administration and the Catholic Church and other religious groups, as well as private businesses that contest the contraceptive mandate in Obamacare.
Missing was any mention of Hobby Lobby or the Little Sisters of the Poor -- whose cases have recently reached the U.S. Supreme Court and that reveal the Obama administration's willingness to challenge, rather than protect, religious liberty in this country.
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The more germane question to cases such as Hobby Lobby and the Little Sisters is whether the government can accomplish its goal of making free contraception available without burdening religious objectors. Can't women in Colorado get contraception without forcing the Little Sisters, a group of nuns who care for the elderly, to violate their core beliefs? Their charitable work could not long survive under penalties the government would impose on them for noncompliance.
For now, the Little Sisters have been granted a reprieve, thanks to Supreme Court Justice Sonia Sotomayor. Arguments in the Hobby Lobby case are scheduled for March, with a decision expected in June. Meanwhile, another case settled in 2012 reveals much about this administration's willingness to challenge religious freedom. In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the question boiled down to whether the government can decide whom a church hires as minister. Since when?
Parker's assertion that the Hosanna-Tabor case is evidence of the Obama administration's “willingness to challenge religious freedom” is surprising, as the EEOC brought this “challenge to religious freedom” while former President George W. Bush was still in office -- a president who cannot seriously be accused of harboring anti-Christian attitudes. More significantly, Parker's characterization of the Hobby Lobby case as evidence of the Obama's administration's efforts to challenge the free exercise of religion is misleading and favors the currently non-existent religious rights of corporations such as Hobby Lobby over the very real ones of its employees.
As Brigham Young University Law School professor Frederick Mark Gedicks has explained, although "[t]he First Amendment's establishment clause prevents the government from requiring people to bear the burden of religions to which they do not belong and whose teachings they do not practice," if the claims of employers like Hobby Lobby are successful, “it essentially would be directing the women who work for these businesses to bear the cost of the owners' anti-contraception religion.”
Parker also ignores the fact that the ACA's contraception mandate does not require that the owners of Hobby Lobby use or take any medications to which they may have a religious or moral objection. The owners are not arguing that their own religious freedoms have been violated, but that the religious freedoms of Hobby Lobby as a corporation have been infringed because employer-sponsored health insurance must now cover comprehensive preventive services for women. Parker glosses over the fact that there is no precedent for this sort of religious argument -- although the Supreme Court expanded the notion of corporate “personhood” in the controversial Citizens United decision, it has never held that non-human, for-profit, secular corporations like Hobby Lobby are capable of expressing religious belief.
Should the owners of Hobby Lobby prevail in their suit, it could have the perverse effect of infringing upon the religious beliefs of the company's employees, not all of whom are Christian or agree with the owners' beliefs. But Parker seems happy enough to disregard the “eroding protections of religious liberty” when it comes to employees, as well as the Establishment Clause problems that could arise if employers could dictate the religious choices of their employees. This blinkered view of these cases is even more apparent in Parker's half-baked description of Little Sisters of the Poor v. Sebelius, which she describes by asking “why the Obama administration is so dedicated to forcing people to act against their own conscience. By requiring through the contraceptive mandate that some religious-affiliated groups provide health plans covering what they consider abortifacient contraceptives, isn't the Obama administration effectively imposing its own religious rules? Thou shalt not protect unborn life.”
As has been explained repeatedly, the Obama administration is not imposing “its own religious rules” but rather the scientific recommendations of the Institute of Medicine toward birth control, of which abortifacients are not a part. Furthermore, Parker appears to be unaware that the Little Sisters are already allowed to opt-out of providing employer-sponsored health insurance for their employees as a religiously-affiliated organization. At this point, they merely have to inform the government of their intentions -- a necessary disclosure that the Supreme Court reaffirmed in the “reprieve” Parker mentions.
Parker also fails to mention that a victory for Hobby Lobby could spell disaster for other for-profit, secular corporations whose board members and employees don't share a common religious viewpoint. As David Gans of the Constitutional Accountability Center recently noted in Slate, few corporations or corporate advocacy groups have jumped in to support Hobby Lobby's case, because “creating a corporate right to the free exercise of religion would complicate corporate governance and destabilize the market” (emphasis added):
Hobby Lobby and its supporters have made much of the fact that a large majority of friend-of-the-court briefs were filed on their side, but the only noteworthy corporate voices to weigh in -- the U.S. Women's Chamber of Commerce and the National Gay and Lesbian Chamber of Commerce -- actually came down against them. These groups in fact urged the justices to see that recognizing a corporate right to the free exercise of religion would wreak havoc in corporate boardrooms across the country. These two chambers of commerce -- whose corporate partners include many of the nation's biggest corporations, including Google, American Express, and JPMorgan Chase & Co. -- explained that recognizing a corporate right to free exercise of religion would hamper, not aid, the efficient organization, management, and operations of American business, embroiling businesses in disputes over what are essentially individual religious beliefs. The groups pressed the argument that, far from protecting business interests, the act of creating a corporate right to the free exercise of religion would complicate corporate governance and destabilize the market, giving a competitive advantage to corporations that could claim a religious exemption from laws applicable to other businesses.
We may indeed be “in the midst of a muddle about where religion and state draw their 'red lines.'” Unfortunately, Parker is not helping clarify the matter at all.