When I graduated from high school in 1970, Americanism v. Communism was a required course of study. The purpose of the course was to teach us the differences between these two political and economical perspectives. There was a time when the educational system, in Florida at least, thought it was important that students should know the fundamental differences between the two. I remember our teacher, Mrs. Glass, told us the time would come when people in America would not know the difference between them and would willingly embrace socialism disguised as democracy. I wonder if that time has arrived.
Some time ago the Department of Health and Human Services of the United States began requiring businesses that provided health care benefits to their employees to provide preventive reproductive services. Specifically, businesses were mandated to provide the “morning-after” and “week-after” pills which are abortifacients.
The Green family who own the retail giant known as Hobby Lobby oppose having to pay for emergency contraceptives that effect an abortion for religious reasons. When HHS refused to allow exceptions on religious grounds, Hobby Lobby filed suit in September of 2012 in federal court. The initial ruling went against the mega retailer, but a recent decision this past June by the Tenth Circuit Court of Appeals reversed the lower court’s findings.
Hobby Lobby’s position is predicated on The Religious Freedom Restoration Act of 1993 that provides the government “shall not substantially burden a person’s exercise of religion unless that burden is the least restrictive means to further a compelling government interest.”
I fail to see a compelling interest on the part of the government here. Department of Health and Human Services Secretary Kathleen Sebelius, who thought it was a good idea to hand out free condoms to school children, thinks private businesses should now provide abortive drugs to those adults who never learned to use the condoms as kids. If Sebelius believes it is that important for adults to have access to abortive pills, why doesn’t she lead the call for the government to offer them free of charge, like her condoms-for–kids policy.
Instead she is one of the petitioners on an appeal to the Supreme Court to overturn the decision by the Tenth Circuit Court of Appeals in the Hobby Lobby case. The suit she and her fellow federal litigants are filing says, in part, “The question presented is whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.”
Sebelius and her allies framed the issue well. But the issue is not if Hobby Lobby has a right to “deny” the coverage; the issue is can the federal government require Hobby Lobby to “pay” for the coverage. The express purpose of the RFRA is to limit the government’s authority to force a person, in this case the owners of a corporation, to act contrary to their religious convictions. Can the government make a private corporation provide after-fornication pills to its employees?
This issue would not even go to trial in a communist controlled country. The government would lay down the law and that would be the end of it. But given Justice Anthony Kennedy’s propensity to use his swing vote on the high court to make moral rulings instead of legal rulings, I do not think the ultimate result will be different than that in a communist country. Kennedy’s ruling to deny the citizens of California standing and setting aside DOMA for moral rather than legal causes were blatant abuses of judicial authority that do not bode well for Hobby Lobby.
Few remember that when Anthony Kennedy was nominated by Ronald Reagan to the Supreme Court, he met privately with Jessie Helms, an ultra-conservative, and with Ted Kennedy (no relation), the ultra-liberal, both members of the Senate Judicial Committee. Both men gave Kennedy a hearty endorsement. I said then Kennedy had missed his calling; he should have been a politician not a judge. I realize now he was a politician all along who also happens to be a judge.
Hobby Lobby’s chances with Kennedy on the bench do not look good. In Proverbs 29:26 we read, “Many seek the ruler’s favor, but justice for man comes from the Lord.” Kennedy will not have the last word. The real Supreme Court does not convene down here.