To salvage its conscience-killing HHS mandate, the federal government has been repeating, mantra-like, that when “followers of a particular sect enter into commercial activity as a matter of choice,” they have to check their faith at the door. The government has used this mantra, with little success, to argue that religious owners of family businesses must divorce their faith from their business. The Becket Fund and other religious liberty advocates have responded that the government cannot “force families to abandon their faith just to earn a living.”
Last week, the government saw the light and recanted. Sort of.
Announcing its federal lawsuit on behalf of a Muslim public school official forced to choose between his faith and his job, the federal government issued a statement that “No employee should be forced to violate his religious beliefs in order to earn a living.”
This national commitment is expressed, among other ways, in our laws. By law, the federal government cannot compel people to violate their religious identity except in the most compelling circumstances, and even then only when absolutely necessary. And the simple fact that a believer has entered the commercial world is not the kind of circumstance that allows such a coerced violation. People’s constitutional rights against governmental religious coercion don’t go away when they go to work, nor do those rights depend on whether they’re writing paychecks or receiving them.
This is not surprising. We would never expect courts to dole out any other constitutional rights—free speech, equal protection, jury trials, and so on—based merely on whether a person was working or employing others when exercising their rights. (And, of course, we expect businesses to allow their consciences to inform their choices, which is why President Obama praised CVS for sacrificing billions in profits to end its cigarette sales.)
Unfortunately, this is exactly the opposite of what the government is saying to family-owned businesses such as Hobby Lobby. At the same time that the government is defending employees from being forced to violate their faith just to feed their families, it is forcing that same violation on employers.
The coercion is obvious. Under the HHS mandate, if religious employers decline to participate in the federal government’s delivery scheme for drugs and devices that can take human life, they face crushing financial penalties. Penalties that would close the doors of most family businesses. Penalties that pressure family business owners to—to borrow from the government’s press release—“violate [their] religious beliefs in order to earn a living.”
Last week’s Department of Justice statement reveals that, at the level of principle, the government knows that Americans’ religious liberty cannot be bought or sold, that earning a buck should not come at the price of faith. But while it is good that the federal government gets this truth for American employees, it is bad for us all that they deny the same for American employers.
Blomberg is legal counsel for the Becket Fund for Religious Liberty, a DC-based law firm which represents Hobby Lobby in an upcoming Supreme Court case.