by William McGurn, November 29, 2013 | 12:34am
So John Roberts will get another whack at ObamaCare.
That’s the upshot of the Supreme Court’s decision to hear lawsuits against the contraceptive mandate filed by the Christian family that owns the Hobby Lobby craft and Mardel Christian bookstore chains. David Green and his family say the mandate would force them to underwrite practices they regard as immoral.
From the moment the administration first put forth this mandate, it’s been clear that church-affiliated nonprofits — from Notre Dame to the Tyndale House Publishers — would protest. What few could foresee is that the mandate would end up bringing to the Supreme Court the question Hobby Lobby now poses: Does a business owner forfeit his faith as the price of doing business?
The family that runs Hobby Lobby is committed to “honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” Although they’re Christian, the appeals courts that ruled in their favor pointed out it’s easy to imagine, say, a kosher butcher or a matzo maker advancing much the same argument for their right to conduct their businesses in accord with Jewish law.
The contraceptive mandate has made the price of such principles high. In Hobby Lobby’s case, if the company refuses to comply it would face fines of $1.3 million dollars per day.
In a brief filed this year, the Becket Fund for Religious Liberty summed up Hobby Lobby’s predicament this way: “When the government threatens to ruin a family’s business unless they renounce their faith, the pressure placed on them is unmistakable. In other words, ‘Your business or your religion’ is just as effective a threat as ‘Your money or your life.’ ”
Which puts Chief Justice Roberts back at the center of attention. On the one hand, the last time ObamaCare came before him he found the individual mandate constitutional. He did so, moreover, with an it’s-a-tax argument that even the other four justices who voted with him didn’t seem to believe, and no other court had found.
On the other hand, Roberts also wrote the unanimous opinion in the big religious-liberty case the high court decided last year. This was Hosanna-Tabor, in which a teacher for a Lutheran school sued when she was fired. Writing for the court, Roberts called the government’s arguments on religion “extreme” and “untenable” — and came down foursquare in favor of the right of churches to choose their own ministers.
The administration’s handling of the contraceptive mandate carries the same whiff of intolerance that characterized its argument in Hosanna-Tabor. In Hosanna-Tabor, the government’s position was that the ministerial exception for churches shouldn’t exist at all. The Obama argument on the contraceptive mandate isn’t much of an improvement: You only qualify for an exception if your ministry excludes those outside your faith. In other words, only a Good Samaritan who limits his help to other Samaritans could qualify.
Now the bill for this absolutism is coming due. Instead of a debate over the religious rights of churches, we now have a spirited legal debate over the religious rights of businesses. Fully half the suits filed against the contraceptive mandate come from for-profit companies.
And guess what? Right now, of the 38 cases where there have been rulings on the merits, 32 have backed the businesses. The big divide among these courts is whether businesses have rights as businesses, or only through their owners.
The case against the government is pretty strong. Back in 1993, Congress passed the Religious Freedom Restoration Act near-unanimously, and President Bill Clinton signed it into law. Though it confirms that religious liberty isn’t absolute — the government, for example, can enforce inoculations or quarantines in the event of epidemic — it requires the government’s interest to be compelling and the means chosen the least restrictive.
That doesn’t guarantee the Supreme Court will find for the Hobby Lobby. It does suggest the debate President Obama triggered with his contraceptive mandate has now exploded far outside its original confines. READ MORE CLICK HERE: http://nypost.com/2013/11/29/obamas-contraception-mandate-heads-to-supreme-court/