An administration as image-conscious as this one should have been more careful in its choice of antagonists. The Little Sisters of the Poor is a Catholic charity providing care to the poorest elderly in a hospice-like setting. They serve 13,000 people in 31 countries, and operate 30 homes in the United States. Their faith calls them to treat every person, no matter how old, disabled or poor as if he or she were "Jesus himself." There is no religious test for admission, only that you be poor and in need of care at the end of life. Think thousands of Mother Teresas. Today, they are facing harassment from the Obama administration.
In 1970, David and Barbara Green founded Hobby Lobby in their garage (which seems to be where all great American businesses are born these days). The family now owns 500 of the arts and crafts stores, employing 13,000. They also own Mardel, a chain of Christian bookstores.
The Greens run their businesses according to their lights. They don't believe in alcohol consumption, so their stores do not sell shot glasses or other drinking-related items. They play Christian music. They close on the Sabbath (losing millions per year). Employees are offered free access to chaplains, other counselors and religiously oriented financial courses. Because the Greens abjure alcohol, they lose money annually by declining to permit their delivery trucks to "back haul" liquor. They provide health insurance that covers 16 different contraceptives. They draw a line, though, on providing four methods that they consider abortifacients, and that's why they have found themselves in court facing the federal government (along with 300 other litigants challenging the Department of Health and Human Services mandates).
Hobby Lobby, the federal government argues, must bow to the regulations promulgated by HHS under Obamacare and provide all 20 methods of contraception, including Plan B and Ella. If the company declines, it will be assessed a fine of $100 per day per employee, or $475 million per year.
Scrambling to justify this assault on the Greens' religious expression (guaranteed by the First Amendment and the Religious Freedom Restoration Act of 1993), the government argues that well, yes, individuals have religious rights, but when they engage in commerce in a for-profit corporation, they lose those rights.
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.