Cal Thomas: Government has crossed the church-state line

04/01/2014 5:42 PM

04/01/2014 5:42 PM

“Well, then,” Jesus said, “give to Caesar what belongs to Caesar, and give to God what belongs to God” (Mark 12:17).

When considering what belongs to Caesar and what belongs to God, what happens when the federal government seeks to replace God by defining “church” and when life begins to have value – the latter having been done in Roe v. Wade and subsequent court rulings?

While there are other issues in the Hobby Lobby case argued before the U.S. Supreme Court last week, these are the major ones.

To review quickly for those who haven’t been paying attention, the owners of Hobby Lobby, a crafts supply chain based in Oklahoma City, are conservative Christians. They believe their faith prohibits them from offering a health insurance policy for their female employees that covers birth control, including all forms of intrauterine devices and emergency contraception. The government says the religious exception they are seeking under the Affordable Care Act applies only to churches and religiously affiliated nonprofits, such as schools and hospitals, and that for-profit companies such as Hobby Lobby are required under the ACA to cover all aspects of women’s preventive care or face a hefty fine.

Let’s consider the arguments before the court and the response of some of the justices.

“The women justices were the most aggressive in their questioning of Hobby Lobby’s lawyer, former solicitor general Paul D. Clement,” the Huffington Post reported. “Justices Sonia Sotomayor and Elena Kagan asked whether other companies should be allowed to refuse to cover other procedures, like blood transfusions and vaccines, if employers had a religious objection to such medical treatments.”

I put that question to professor Joshua Hawley of the University of Missouri School of Law. Hawley is also counsel to the Becket Fund for Religious Liberty. In an e-mail, Hawley wrote: “The Religious Freedom Restoration Act (which states that government shall not substantially burden a person’s exercise of religion) does not give religious objectors a blank check. The statute requires objectors to show that they have a sincere religious belief that is substantially burdened. And it permits the government to impose the regulation anyway if the government can show that its interest is truly compelling and that it has no other viable means available for achieving it.”

Specifically addressing the comments by Kagan and Sotomayor, Hawley said the compelling interest standard “would likely work to defeat many other religious objections,” including for blood transfusions and vaccines, because “the government could almost certainly show that it had a compelling interest in requiring businesses to pay for lifesaving procedures and treatments, including antibiotics.”

Justice Anthony Kennedy may have come up with the best compromise. He asked Clement why Hobby Lobby could not drop health insurance altogether, pay the fine and increase salaries of its employees so each could buy health insurance that fits their needs.

Come to think of it, that approach makes sense for everyone. Unfortunately, it is not the one-size-fits-all approach of the Obama administration.

Caesar needs to get back on his side of the church-state line. That’s going to take a Republican Congress and a Republican president with courage and a new health insurance plan to repeal Obamacare and start over with real reforms that protect religious believers and enhance health care.

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