What constitutes a secular business? How do we determine whether a religious practice is sufficently religious to be entitled to protection?
Also, why do we assume that the church only hires believing members of its religion? Heck, the ministerial exception typically only extends to persons engaged in actual religious work (although, the case law on that does suggest that St. Mary’s School might be sufficiently religious). I mean, I have a Jewish friend who’s a music director at a protestant church. Certainly, a church might hire a non-religious administrator or janitor. No religious protection for St. Mary’s Church, Inc. becuase it’s hired non-religious employees?
A secular business would be one where the main service provided is not religious service or instruction. True, some church employees may not be church believers, but they know that they’re going to be working for a religious enterprise. Hobby Lobby employees, not so much.
Wouldn’t your objection be cured if Hobby Lobby prospective employees were told, in advance, that the job included a religious component - to wit, evangelizing the faith by not funding contraception?
Is the problem the for-profit status? (I actually find that to be a potentially workable distinction). What if my religion requires me to feed the poor? Is St. Mary’s soup kitchen a secular business? Or St. Mary’s religious bookstore? Why do you exclude St. Mary’s Hospital? What if I believe it is my religious duty to minister to the sick?
Also, I wonder about “main service.” Is the church thrift store a secular business? Probably, right. The main service is the sale of used goods. Does it matter that it’s done for religious reasons? Is the Salvation Army religious?
I think the for profit distinction is where I personally would draw the line. You’re working at St. Mary’s Church because you want to help the chuch succeed in spreading the gospel and are, directly or indirectly, in the religion business. You work at St. Mary’s Hospital because you work in the medical profession.
If you believe it is your religious duty to minister to the sick then I suppose medicine is the field of choice for you. What matters to me is that the hospital itself is a medical institution, not a religious one.
Perhaps if jobs were so plentiful that job seekers had honest choices to make in potential employers Times being what they are, people take what work they can get. Hobby Lobby should not be exploiting that situation by requiring otherwise non-religious folks to live by their moral code as a condition of being able to put food on the table.
But that’s awfully employee specific, isn’t it? I mean, I know someone who is a music director at a church, but he’s a secular Jew who has the job because his profession is music. The janitor at the church probably just needs to feed his family. But the nursing Nuns at St. Mary’s Hospital are probably somewhat religiously motivated.
But even then, so what? You’re right that what matters is the institution. I just don’t know why St. Mary’s School (an educational institution), Hospital (a medical institution), adoption agency or soup kitchens (social services institutions) don’t get to also be religious institutions.
You seem to want to draw the line at for-profit companies that sell products to (and hire from) the general public. And that makes sense to me (I don’t know if I agree, but it makes sense). But that should put St. Mary’s Hospital on the “religious” side of the line, even if we lose St. Mary’s hardware store.
One of my friends posted this on Facebook and I think it’s a great summary of why this exemption shouldn’t be granted.
TL/DR - if the implications of running a multi million dollar business impact your personal beliefs the true way to be a conscientious objector is to not run a business. Not to ask others to suffer for your beliefs.
Does St. Mary’s Hospital employ only the religious, treat only the religious, and not make a profit? If so, I’d grant the exemption. Since all three are likely answered in the negative, then I wouldn’t.
I would, however, grant one to St. Mary’s Porno Emporium, just for being cheeky enough to call itself that. Of course, they probably have < 50 employees.
I find it difficult to believe that only acceptable response to a religious burden being placed on an activity is to stop doing the activity.
For example, some years back there was a case with two observant Muslims who wanted to wear beards (as a religious obligation) and be Newark police officers. The department had a clean shaven policy. I suppose your position would be: if you really wanted to be a Muslim, then you just can’t be a police officer.
I use the police officer example primarily because there is nothing in being a police officer that is obviously related to beardlessness just as there is nothing in running a business that seems inherently related to providing abortofacient drugs to your employees. In that sense, it strikes me as quite different from the Marine who’s a conscientious objector (a real case, by the way), or the pharmacist who won’t dispense any drugs.
So if the church hires non-members, or provides services to non-members (a shelter dinner, perhaps? Or a soup kitchen), then they’re out too, right?
And, of course, if the church refuses to hire non-members for non-ministerial positions, then it runs afoul of the law too. I don’t know what the public accomodation rules would be for providing soup only to members (although the sign: “No Soup for Jew” on the front would make me chuckle).
I think we’re making things too hard. For me, it’s simple. Is your primary mission that of religious service/education? If so, you’re a religious institution. Exemption for you. Do you make a profit? No exemption for you. Are you non-profit AND non-religious? Prove why contraception is counter to your mission statement. If you can, you get exemption.
I like clear rules that can be applied fairly (it bothers me that much of the objection to Hobby Lobby’s position seems to be opposition to their religious views). My main quibble with your position is defining “religious service/education.” I think our main point of contention is line-drawing on the outer limits. But that’s fine at the level of generality that we’re talking in.
I don’t know what I think about non-religious conscience exemptions, but there’s a significant movement in their favor, and maybe they make sense.
Here’s the next question though: the profit/non-profit distinction might make sense for the organization’s religious rights. But what about the business owner? Does he have some right to run his business consistently with his religious views (leave aside the corporation versus sole proprietorship question for a moment)? Other than that Quaker fellow quoted a few posts ago, we don’t typically require employees of secular business to abandon their religious rights as a condition of employement (indeed, an employer has an obligation to make reasonale accomodation). Do the religious interests of the individual in the secular businessplace depend entirely on his “rank”?
For me, the criterion is “does the matter interfere with the rights of others?” For example, a Jewish deli owner can refuse to carry ham. But he can’t insist that his male employees be circumcised Hobby Lobby can not stock items that they feel denigrate Christianity, but they can’t tell their employees not to use contraception.
Sorry but I think the major difference in your examples is the person it impacts. The Muslim police officers have every right to protest and work on making changes it policies that impact them.
There is nothing inherent in running a business that gives you the right to decide what your employees do with the compensation provided to them. The fact that the government now mandates what is included in health care is no different than the government setting minimum wage.
This is not the employees “doing something” with compensation that is provided to them. They are free to take that compensation and buy whatever contraceptives they wish.
They are not free to require that I buy their contraceptives for them.
Yes, it is different. The minimum wage does not infringe on a sincerely-held religious belief.
Look, do you understand what the RFRA says? Can you summarize it?
Right. And the employees can’t tell the employer to buy them contraception. If they want it, they can buy it.
It’s always been a good clue how weak an argument is: listen to how often proponents of the position have to misrepresent the facts to shore up their side.
They aren’t buying contraceptives. They are buying insurance for them and some employees will choose to use that insurance for contraception. If that offends their moral code then their moral code is ridiculous.
But they’re not telling them not to use contraception. They’re objecting to paying for (certain types) of contraception. That’s the basic issue that gets so often obfuscated.
I’m not sure I see the distinction you’re drawing on the Muslim police officers. Isn’t the point that if your religion won’t permit you to do the job in the manner required, you don’t get to claim a (judicial) exemption, rather you just don’t do the job and accept that as the consequence for having religious beliefs.
But isn’t there something inherent in running a business that gives you the right what kind of compensation to provide? The law (now) says 1) you must provide health insurance and 2) it must pay for certain things. I mean, they’re not asking to “decide what your employees do with the compensation provided to them,” they’re asking to decide the form that the compensation is provided in.
Maybe it is the same as the minimum wage (or social security taxes that were dealt with the in the Lee case). In that case, we can demonstrate some compelling government interest and so forth. But no one questioned that the social security taxes in Lee actually burden the Amish’s religious liberty; it was just that the taxation scheme was so important. It certainly wasn’t dismissed out of hand as the cost of doing business.
I had to check my calendar. Yes, the first two digits were 20 and not 16. Seriously, we have people so opposed to contraception in 2013 that they’d rather shut down their business than give someone a benefit that could be used to purchase it? I’m all for the freedom to worship as one sees fit, but the minute that it interferes in the employer-employee relationship it’s time for the one party to find a new line of work.