In an editorial supporting the government, The New York Times opined: "The First Amendment does not exempt religious entities from complying with neutral laws of general applicability, like the contraceptive mandate, much less private profit-making corporations." Odd that the Times has forgotten its own history. In New York Times v. Sullivan, the Court upheld the principle that corporations do not forfeit their First Amendment rights to free speech just because they are engaged in a profit-making business.
In both the Hobby Lobby and Little Sisters of the Poor cases, the federal government is attempting to define religion so narrowly as to exclude all but churches and church-affiliated institutions. The Becket Fund for Religious Liberty, which represents both plaintiffs, argues that this is a pinched and constraining interpretation of the law and the Constitution. Our religious liberty is more than freedom of worship.
It's also a worrying precedent. As the National Jewish Commission on Law and Public Affairs urged in an amicus brief to the Supreme Court, if the Hobby Lobby can be forced to provide abortifacients, then observant Jewish employers (if incorporated) could be forced to open on Saturdays, serve non-kosher food or engage in other practices that violate the consciences of the owners.
Because the Little Sisters are not part of any church, they are not eligible for the religious exemption. No problem, the federal government assured them, just sign this little piece of paper -- a "certification" explaining their religious objections to providing the drugs and directing a third-party insurer to provide the coverage. The Little Sisters declined, believing that to sign such a document is to be complicit in something that violates their religious convictions. There are wrinkles in the fact pattern, since the Sisters are insured by Christian Brothers, who also oppose the law, but the principle remains: Do Americans lose their rights to religious expression because they are not explicitly linked to churches, synagogues or other houses of worship? Is living out your faith now to be hamstrung by the HHS backed by the enforcement of the IRS?
Two years ago, announcing that nonprofits like the Little Sisters would be required to go along with providing all contraceptives and abortifacients, even if it violated their religious convictions, Secretary Kathleen Sebelius sniffed that the religious would "have to adapt."
Such an adaptation would represent a severe loss to the elderly who rely on the Little Sisters -- and to the scope of religious liberty in America.
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