The Changing View of Religious Rights: Fallout from Burwell v. Hobby Lobby

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.  – US Constitution, 1st Amendment

The first amendment was written in a country full of religious refugees (and descendants of the same) who fled fractured Europe where millions of people had died in wars over religion.  It did away with religious requirements for government jobs, which could be found both in Europe and the colonies. It barred the government from limiting any specific expression of religion, which had been happening everywhere in Europe.

We have expanded that significantly.  Your boss cannot discriminate against you because of your religion.  And we’ve made allowances for religion: for example, places that have dress codes frequently need to make allowances for proscribed ritual dress.

Today, the Supreme Court told us that not only are corporations people, but some of them can have religion, and that status as a religious-corporation-person allows it special exemptions.

Birth Control v. Abortion

While headlines are repeatedly saying Hobby Lobby can refuse to cover “birth control,” the practices in question are limited to methods such as IUDs and Plan B, the “morning-after pill.”  If an egg is fertilized, these items keeps it from implanting in the wall of the uterus.

Says Hobby Lobby CEO David Green:

A new government health care mandate says that our family business MUST provide what I believe are abortion-causing drugs as part of our health insurance.

We’ve given so much weight to the words “I believe.”  Green believes these are abortion-causing drugs, which is now enough to gain his for-profit company exemptions meant to protect everyone equally.  It doesn’t matter that no one outside of the pro-life community considers these “abortion-causing.” They’re contraceptives.

Says Justice Samuel Alito:

The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.

Let’s make something clear: “religions” don’t dictate what is and is not an abortifacient.  That is the conclusion of certain religious individuals.

Green continues:

Being Christians, we don’t pay for drugs that might cause abortions, which means that we don’t cover emergency contraception, the morning-after pill or the week-after pill.

All sorts of Christians pay for drugs that might cause abortion.  Many use them. Some have actual abortions.  But the language use here gives the impression that Green speaks for all Christians everywhere, and that his position is objective.

The Abortion Debate

So these corporations are getting an exemption because they believe these items cause abortions.  Let’s go with that for a moment.

Abortions are legal.  But the pro-life faction has continued to chip away at Roe v. Wade for decades and have increased their pressure in recent years.  Today they got another chip; yet another option for women has been blocked.

Granted, the ruling does not bar these employees from using birth control.  By that logic, however, the law isn’t forcing them to act against their religion in the first place.  The law doesn’t say they have to use birth control/abortifacients.  It says the insurance which the corporation pays for has to include birth control coverage.

Wider Risk to Birth Control

Some are trying to downplay the scope of this ruling, insisting this has nothing to do with birth control in general.  Hobby Lobby, for example, is only objecting to four of the twenty forms of birth control required by the Affordable Care Act mandate and is willing to cover the other 16.

That doesn’t mean everyone is willing.  The Supreme Court just ruled Hobby Lobby and others are exempt from covering four forms of birth control.  How could they justify turning down petitions to exempt companies from all twenty forms?

Some see all hormonal birth control as abortifacients on the grounds they can at least theoretically cause a fertilized egg to not implant in the lining of the uterus, even if the major intent of the drug is to simply stop ovulation.

And there are some who are against all forms of birth control.  No IUD, no pill, no condoms.  They consider sex to ultimately be an act of procreation, so to block that process makes sex an unnatural act.

That too is an opinion.  The most common argument for such a ban is based on Genesis 38, when God killed a man for “spilling his seed” i.e. deliberately ejaculating in a manner that will not produce pregnancy.

And Onan knew that the offspring would not be his; so it came about that when he went in to his brother’s wife, he wasted his seed on the ground, in order not to give offspring to his brother. – Genesis 38:9

Onan’s sin was not spilling his seed.  His sin was deliberately not giving his dead brother’s wife a child, as was the cultural expectation.  Such a child would be considered his brother’s, not his own, thus, he “knew that the offspring would not be his,” and that was his motivation.

Read the whole story.  Or at least the whole verse.

Rights of Religions v. Rights to Non-Religion

Hobby Lobby argued that the government forcing certain companies to pay for a service (insurance) that includes birth control infringes upon their right to live according to their religion as they understand it.

I am the last person to say government should be able to dictate what is or is not a valid religious belief.  One of the purposes of the 1st amendment was to protect minority religious opinions.  One groups’ rights cannot trample another group’s rights.

But that cuts both ways. This ruling forces employees of these companies, which may number in the thousands, to live in the shadow of the owners’ faith, regardless of their own beliefs. paying for it makes me a part of something I consider immoral.  By that logic, my paying of taxes makes me responsible for the war in Iraq and every other thing for which my taxes are used.

Right to Personal Practice

The first amendment was about not limiting personal practices of faith.  A woman has a right to veil herself (except in certain situations where it becomes a security issue).  A man does not have the right to force a woman to wear a veil.

A religious group is allowed to assemble to practice their faith.  They are not allowed to assemble in the middle of the street where it disrupts the life of everyone else.

No woman is required to have an abortion.  However, you can’t insist no one else have an abortion either.

This ruling, however, says that you can seriously limit someone’s access to birth control in the name of your religion.



  1. Well, I’ll tell you like I heard it! “You don’t have to work there!”

    I was a kid in the 80s and the only summer job available was picking Tobacco. Now, I do not use the product. I do not approve of its use because it makes everyone suffer and I watched my grandfathers suffer right up to the moment they died from using the stuff! Now, they were not forced physically to smoke but they did. Back to my delima, as a kid I did not want to support that industry but it was the only job I could get. So, I worked in tobacco, until something else, Pepper, came along and I could work with that. Never grew to like tobacco and don’t think I ever will but during that time, I made my peace with it. You can have convictions and you can starve for them or you can find a place where you have a boss that agrees with you or at least a company that does.

  2. Author

    Except in this case you’re asking someone to change their job in order to get something guaranteed to the rest of us.

    Comparing your not wanting to support the industry by working for them is more comparable to people not wanting to support the company by buying from them.

  3. Wait just a minute! Hobby Lobby said they WOULD allow 16 types of birth control and refused ONLY 4, that could lead to abortion. So, they were not evil nazis, like the media is making them out to be! They are giving a COMPROMISE! This is the principle that our country operated on for the first 80 some odd years! Internationally we were known as “The Great Compromise.” Now there is some speculation whether that was derogatory or complementary but we had a reputation for working things out! Until hard headed people on BOTH sides refused to compromise on several issues and we got a horrid war! Sadly, we are heading RIGHT back that way! I like your blog but this issue is one that needs a lot more careful research from ALL people than just joining the liberal media’s out cry for undesirables to be run out of town!

    1. Author

      They aren’t compromising. They’ve only ever said they object to four (as stated above). They got exactly what they asked for. Poor research on your part.

      The point is that you shouldn’t have the right to an exemption that hurts other people in the name of religion.(also stated above)

      The point is religion doesn’t define words. (as stated above) Those products do not cause abortion by any medical guideline nor in common use of the word. Impeding implantation is not abortion. The fact that a minority of people have decided it is shouldn’t impact the rest of us.

      The point is if you can get an exemption from four, I don’t see how other companies shouldn’t be able to get an exemption from all 20.

      Did you actually read my post or just read the title and make presumptions?

      Also, first one to compare the opposing argument to Nazism loses.

  4. “Also, first one to compare the opposing argument to Nazism loses.”

    I’m sorry I was not aware there were rules to a discussion? I thought that a discussion was held to find a solution or better understanding that we could reach a middle ground? I guess middle ground, which is what was reached by SCOTUS. Whether intended or not! HL agreed to some but not all and when both sides walk away unsatisfied, that means the compromise was reached.

    Answer this, why is there such an up roar for these four, of the 20? There are 16 others!!! Pick and play, if they will and they are not “branded” the workers can still get them.

    Here’s another question, why should the government be allowed to decide what is best for YOUR health? Now, I know you will respond with the picture that introduced your article but a picture of Obama, or a government rep., with an X through his face should be there too!

    Yes, I did read your post and unlike the rest of them, this one seemed more biased for AHA. I get what you are saying! A boss should not have the right to decide your health but neither should a government and by the way before you introduce FDA or EPA as a response to Gov’t making health issues for us, just remember they get things wrong too but we must live, or die, with their mistakes.

    1. Author

      How is the government in any way deciding my healthcare? It’s merely making more options available.

      And, yes, there are accepted rules of debate.The one about Nazi’s is known as Godwin’s Law. The point being very few comparisons to Hitler and the Nazis come anywhere close to Hitler and the Nazis, and so you’re being unreasonable, inflammatory and bombastic in such a comparison.

      The post wasn’t about the ACA. My opinion of the ACA is irrelevant. The post was about the Hobby Lobby ruling and the purpose and function of the ACA, regardless of my opinion of it. And you illustrate the common problem with this topic: some people support things like Hobby Lobby’s suit not because they agree with Hobby Lobby but because they just want to see the ACA fall by hook or by crook.

  5. Jason,

    There are some women (myself included) that cannot take ‘the pill’ or any other hormonal birth control. The copper IUD (aka ParaGuard) is the only long-term option available, and happens to be one of the four that HL objected to. I would be putting my life at risk if I opted to ‘pick and play’ as you put it, but the one that would be the best fit would be off limits and the cost without insurance would be about $500 at Planned Parenthood (a bit more than 40% of your monthly income if you worked at HL full time).

    What works for one person may be detrimental to another. That is why there are multiple medications for ailments like high blood pressure, cholesterol, insulin, etc. Likewise, there are classes medications (like MAOI’s) that disqualify you from taking many meds due to interactions that could be life threatening. I see it’s HL restricting the options in this case, not the government.

  6. The Abortion Debate & Rights v. Rights: the majority opinion seems to follow the same philosophical argument as the Catholic idea of material cooperation with evil. The conclusion was that it wasn’t within the purview of the courts to decide what was evil, only that the people believed it. The government mandate was considered a substantial burden because the majority believed it would cost Hobby Lobby over $400M/year.

    Wider Risk to Birth Control: By the court’s decision they could opt out of every contraceptive. That they won’t is immaterial. The majority opinion also states things that could not be exempt, but doesn’t provide solid reasoning as to why (since they didn’t argue against the government having a compelling reason for mandating that birth control be included, it’s like they want to create multiple tiers of compelling reason even thought the law doesn’t recognize such).

    Rights v Rights & Right to Personal Practice: The majority opinion mentions employees a couple of times. Once is in the opening where it says that this is for everyone’s freedom (even though it isn’t); and once is a flat denial with no reasoning behind it of the dissenting opinion, that thousands of employees will be affected by this decision. Basically, according to the majority, the only people that matter in a corporation are the stakeholders.

    Right to Personal Practice: This case didn’t address the First Amendment. In 1990, the Supreme Court decided that the First Amendment didn’t apply to neutral laws As a response, the RFRA was created. It has three conditions: 1 – the law may be illegal if it causes a substantial burden against the practice of religion, 2 – the law may still be legal if it serves a compelling interest (1&2 patch the hole created in Smith), 3 – the law must use the least restrictive means of accomplishing its compelling interest (this makes it more powerful than the First Amendment).
    Because the government allows nonprofits to fill out EBSA form 700 to exempt themselves from the mandate (it shifts the burden for that part of the ACA to the insurers), the majority believed that this was a less restrictive means of achieving the compelling interest and so the mandate fails against religious corporations under that part of the RFRA.

    Current SCOTUS: This case brings together three aspects of the current decisions by this particular 5 justice majority that I dislike. One, the court refuses to acknowledge that certain rights (like basic healthcare) exist for women and minorities (to be more precise, they point to the status quo and say good enough – even if it isn’t – while ignoring the changes their rulings will bring about). Two, the court has been expanding private intolerance of other religion in public spaces (in the name of protecting freedom of religion). Three, the court has been eroding the corporate veil (from the majority opinion, “Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.” This is taken to mean that if the humans that run a corporation share a religious belief then that is the belief of the corporation) and expanding the rights of corporations as persons.

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