Cover Story

Here they stand

"Here they stand" Continued...

Issue: "Taking a scalpel to the First Amendment," Feb. 9, 2013

A narrow exception to the HHS mandate applies mostly to churches, freeing them from the requirement. But for other non-profit religious employers—like Christian colleges and Catholic hospitals—the mandate still applies with a deadline of August 2013 to comply.

More than 80 such organizations have filed suit against HHS, and at least two have made significant progress: In December, a federal appeals court reinstated the lawsuits of the evangelical Wheaton College and the Catholic-based Belmont Abbey College—both represented by the religious liberty firm Becket Fund. (Courts had dismissed the lawsuits in August, saying the litigation was premature.)

HHS attorneys said the government intended to issue a new exception that would protect colleges like Wheaton and Belmont Abbey, but judges demanded action: HHS must update the court every 60 days until it publishes a new exception for religious institutions. The government said it would propose new language by the end of March. For now, it’s unclear how far a new exception might reach.

While the decision was a victory for religious non-profits, it offers no protection to owners of for-profit companies with similar religious convictions. For them, the mandate applies now unless they win a court injunction. And exceptions aren’t on the horizon.

That has led more than 14 for-profit companies to file suit, including four owned by evangelicals. One of those companies—Tyndale House Publishers—is a for-profit corporation, but clearly religious in nature: The evangelical company publishes Bibles and Christian books. (And the company directs most of its profits to non-profit causes.)

ADF attorney Matt Bowman won a preliminary injunction on Tyndale’s behalf in November, and said: “Bible publishers should be free to do business according to the book that they publish.” The court agreed in its written opinion: “… the beliefs of Tyndale and its owners are indistinguishable.”

The same reality seems obvious for other evangelical-owned companies as well. Perhaps the highest-profile case is Hobby Lobby—the massive craft retailer with 520 stores in 41 states. The Oklahoma-based company averages $3 billion in sales each year, according to Forbes, and owner and CEO David Green ranks No. 79 on the magazine’s list of the 400 richest Americans. The publication estimates Green’s net worth at $4.5 billion. It also notes Green’s vast giving to Christian ministries like the OneHope Foundation and Every Home for Christ, and estimates his lifetime giving at $500 million.

Indeed, Hobby Lobby’s website says the company is committed to “honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”

To that end, the stores close on Sundays so employees may rest and participate in worship. The company publishes full-page ads in newspapers at Christmas and Easter with Christian messages. And it starts its pay for full-time employees at 80 percent above minimum wage. Green says it would violate his Christian beliefs to pay for “emergency contraception” that could cause abortions. The company filed suit against HHS in September.

The government contends the required “emergency contraception” drugs aren’t abortifacients. But the FDA label on the morning-after pill known as “Plan B” notes the drug “may inhibit implantation” of a fertilized egg.

Since pro-life proponents define fertilization of an egg as the beginning of a pregnancy, they label “Plan B” and Ella—a similar drug that can be effective five days after unprotected sex—as abortifacients. The law also requires coverage of intrauterine devices (IUDs) that may block implantation of fertilized eggs. (See “Mandated drugs” sidebar at the end of this article.)

Meanwhile, Plan B is available over the counter, and many county health clinics and Planned Parenthood offices offer emergency contraception at no cost, low cost, or on a sliding scale depending on income.

Despite the threat that the IRS would levy massive fines (up to $1.3 million a day) for non-compliance, Green said the company wouldn’t offer the drugs: “We simply cannot abandon our religious beliefs to comply with this mandate.”

Less than three months later, U.S. District Judge Joe Heaton denied Hobby Lobby’s request for a preliminary injunction, and the Supreme Court refused to provide an emergency stay as the case proceeds through the lower courts.

In his ruling, Heaton said Hobby Lobby and its sister company Mardel—a Christian publishing house—are “not religious organizations.” The judge said the court had not found a case establishing that “secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion.”

That argument may prove the central issue in each of the for-profit cases, and will likely culminate with the Supreme Court ruling on whether for-profit companies have the right to free exercise of religion. Considering the court’s decision in Citizens United that companies have a right to free speech, many attorneys say First Amendment rights to free exercise of religion should be implicit.  

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