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The Obama argument: only churches—not individuals—can claim religious freedom

By Phil Lawler (bio - articles - email) | Aug 01, 2012

Arguing against Hercules Industries—the Colorado firm that won an injunction against the HHS contraceptive mandate--lawyers for the Obama administration made the stunning claim that “for-profit secular employers generally do not engage in any exercise of religion protected by the First Amendment.”

Read that line again. If you don’t want to take my word for it, read it in the brief submitted by the Justice Department in support of the mandate (you’ll find that quotation on page 35). Now reflect on what those portentous words mean.

They mean that ordinary Americans like you and me, as we go about our everyday business, are not protected by the religious-freedom clause of the First Amendment!

Oh, sure, we’re protected on Sundays, when we go to church. The government can’t interfere with worship services; the Obama administration will grant that much. But it’s the church qua church that is granted that constitutional protection. Individuals are not.

The Newland family, owners of Hercules Industries, are religious people—Catholics, in fact. They presumably attend Mass on Sundays, and the Obama administration has no problem with that. But on Monday mornings, when they show up at their offices, the Obama administration argues that they “generally do not engage in any exercise of religion” that deserves constitutional protection.

How does the Justice department know that? Maybe the Newlands pray quietly, by themselves, during work hours. That’s an “exercise of religion,” isn’t it? Shouldn’t it be protected? OK, and what if they hold deep-seated religious beliefs, which impel them to act in certain ways? Wouldn’t those beliefs, and the actions that flow from them, merit some constitutional protection?

The Obama administration says No. The Justice department brief argues that a line can be drawn between the employer’s exercise of religion, which takes place on Sunday, and his business activities during the week. When they are acting as for-profit employers, the administration claims, the Newlands are no longer religious actors.

Unfortunately the Obama administration is not unique in making this claim. A Los Angeles Times editorial, defending the administration’s position, argued thus:

Our view is that church-affiliated charitable and educational institutions should offer such coverage, even if they are self-insured…That said, religious colleges and hospitals are at least part of a church's religious mission, so the discussion makes sense. The same cannot be said for a company that sells heating, ventilation and air conditioning services.

By what logic is Hercules Industries excluded from the religious mission of the Church? Certainly not by the logic of Vatican II, which emphatically taught that lay people, even when engaged in secular activities, are full partners in the work of the Catholic Church. Our formal worship does not exhaust our commitment to Catholicism; we are also enjoined to transform the secular order through the power of Christian witness. That’s an essential part of the mission entrusted to the Catholic laity. It is the “exercise of religion” that is expected of us. So if that is not protected by the First Amendment, we as citizens are not protected.

The Obama administration seems to be arguing that freedom of religion is a corporate right, which applies only to institutional churches. That argument is incompatible with the original intent of the Bill of Rights, which was clearly designed to secure the freedoms of individual citizens. It is equally incompatible with the teachings of Catholicism, which require all of the faithful—lay, clerical, or religious; in church or on the job—to share responsibility for the Church’s mission.

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Show 7 Comments? (Hidden)Hide Comments
  • Posted by: Randal Mandock - Aug. 03, 2012 1:09 PM ET USA

    Defender hit the nail on the head. The United States is no longer a nation that bases its legal decisions on justice; we are now a nation of LAW: positive, human law that often as not impedes the administration of God's justice. They tell us that we are a nation of laws, but what we need to become is a nation of justice.

  • Posted by: sparch - Aug. 03, 2012 12:02 PM ET USA

    Our government exists to serve the people, the people do not exist to serve the government. The intrusion of the government on how we live, think and conduct ourselves by this administration goes well beyond the pale. Still, very little seems to be diseminated by those I talk to. Not only is their religious freedom being threatened by ongoing persecusion, little by little the language is being changed to accomodate a change the meaning of the words of the constitution itself. No more freedoms.

  • Posted by: robertcampbell_78332 - Aug. 02, 2012 3:35 PM ET USA

    Watch out Catholic Culture - you'll be next on the hit list. But then your not a for-profit organization are you? Maybe you'll escape this time - but wait for the next!

  • Posted by: happyseaotter8027 - Aug. 02, 2012 12:09 PM ET USA

    I do not put on a "Catholic uniform" when I go to Mass and then leave it at the door of the church to go off and suddenly become secular. We should all live our faith 24 hours a day. These are hard times and they will get worse but times have been hard in the past. We have to remain strong and united as Catholic Christians as we are being persecuted.

  • Posted by: rdennehy8049 - Aug. 02, 2012 8:12 AM ET USA

    The same Justice Department that failed to prosecute the "New Black Panther Party" for intimidating voters in the 2008 elections. The same Justice Department who maintains that any attempt to require valid ID to vote is interfering with the rights of minorities. The same Justice Department that allowed "Fast and Furious" gun program.

  • Posted by: Defender - Aug. 01, 2012 10:54 PM ET USA

    Lawyers...They make the rules, they judge the rules and the enforce the rules. Obama is a lawyer and ever since he came to office, look at all the rules he has chosen not to enforce because he doesn't like them. It seems that they all need a remedial course in constitutional law and not by the president, either - he obviously forgot what is in the First Amendment, as well as the responsibilites of each branch of government (especially the executive).

  • Posted by: Justin8110 - Aug. 01, 2012 6:03 PM ET USA

    It's things like this that prove to me beyond a shadow of a doubt that when the late Father Hardon said "only heroic Catholics will survive in the 21st century" he knew what he was talking about. In the end we must be Catholic all the time, we cannot compartmentalize our Faith. If we actually live as Catholics all the time we WILL be persecuted in the coming years but what else can we do? All of us must ask ourselves who we wish to serve, Christ or Belial and then act accordingly.

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