Opinion Columns & Blogs

Russell Arben Fox: Schmidt got idea of ‘religious liberty’ wrong


The state of Kansas filed a brief last week in support of Hobby Lobby’s effort to exempt itself from the requirement under the Affordable Care Act to provide contraception coverage as part of its employees’ health insurance. Our state attorney general, Derek Schmidt, says that the lawsuit is entirely about “religious liberty.”

He may be right, but the way he’s expressing it – by joining this case – gets that idea terribly wrong.

Speaking very broadly, there are two categories of complaints being made against the contraception requirement. Owners of for-profit businesses see providing contraception coverage for women as an evil in light of their beliefs about the morality of birth control. And various religiously oriented nonprofit groups and schools think that the ACA contraception requirement entangles the mission of their organization in something they consider to be evil.

In the second category, there is an important principle at stake. It is a good thing to allow individuals and groups that are going about their religiously defined work to exercise some real cultural and moral dissent from certain generally applicable laws.

But for ordinary businesses to claim religious exemptions from laws that pertain to ordinary commercial transactions – which is what Hobby Lobby is attempting to do, and what Schmidt is supporting – intrudes on dangerously unequal territory.

Business and other for-profit corporations have significant social power in society. After all, that’s where most of us work, and they supply most of what we need to live our lives. Broad religious exemptions granted to such entities put them in a position to powerfully discriminate against individuals, which is not what “religious freedom” ought to mean.

For example, if someone obtains a business license to run a commercial hotel and then puts out a “vacancy” sign, thus encouraging commercial traffic at his hotel, he should not then be allowed to say, to an otherwise law-abiding adult citizen who has the money to pay for an available room at that hotel, “You can’t stay here; I don’t rent rooms to Jews.”

Civil rights legislation has made it clear that private businesses may be privately owned, but they – within certainly clearly defined limits – must adhere in their operations to publicly determined expectations. Unless you are talking about a small, closely held, commercially limited private corporation – which doesn’t describe a mega-store franchise like Hobby Lobby – religious beliefs should not be allowed to trump ordinary commercial operations.

If Hobby lobby and the state of Kansas really are willing to die on this hill, let’s be clear about something: Contraception is legal in the United States. Hence, it may legitimately be considered as an element of health insurance packages, which in turn may be subject to democratic debate and, if appropriate legislation allows, public provisioning.

I strongly defend religious exemptions that genuinely reflect the ministerial and cultural missions of nonprofit and charitable organizations. And some accommodations for certain businesses are also appropriate. But to give a broad exemption to a general law for the sake of the religious conscience of owners of a business that is required to treat its male and female employees equally anyway?

Former federal court Judge Learned Hand once said: “The First Amendment ... gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.” Schmidt needs to learn that.