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.