Hobby Lobby Yields More Rancor as Wheaton College Queues Up to Deny Contraceptive Coverage to Its Female Employees

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Posted in: Civil Rights

When I was in third grade, my family moved from Richardson, Texas, to Wheaton, Illinois. It was an eye-opening move for this Presbyterian, because I had had no sense of being an outsider in Richardson, but felt acutely out-of-place in the city of Wheaton, which was controlled by Wheaton College and the Wheaton Bible Church. The city was dry; the pervasive ethos was that you needed to be “saved” to make it to Heaven; and there were “true believers” and then the rest of us.

Many of my friends were part of the evangelical culture, and eventually I was “saved” at an enormous Billy Graham event and joined, for a period of time, the youth group at the Bible Church. I will never forget being invited to a Bible study one afternoon after school. We gathered in an apartment living room filled with fellow students sitting on the floor, chairs, and the couch. I do not even remember the Bible verse that prompted the comment, but early in the event, the prayer leader declared that “all Catholics are going to hell.” Heads bobbed up and down around the room.

I stood up and left, never to return.

Wheaton College Demands RFRA Accommodation to Avoid Providing Some Reproductive Coverage for Its Female Employees

I honestly don’t know whether Wheaton evangelicals have changed their minds about Catholics’ chances at salvation, but as the National Catholic Reporter

notes, there is now a shared political universe of the two faiths in the Republican Party. Thus, perhaps it was inevitable that after the male Catholic members of the Supreme Court (a majority of the Court) declared that closely held corporations have souls and, therefore, can use their faith to deprive their female employees of reproductive health coverage in Burwell v. Hobby Lobby, the next organization to step into the spotlight was Wheaton College. And wouldn’t you know it: the men who interpreted RFRA to force accommodation of for-profit nonreligious corporations in Hobby Lobby granted the college an injunction—barring the government from enforcing the Administration’s accommodation measures for nonprofit organization—while the case was pending on the merits.

Wheaton College is seeking to avoid having to self-certify to its insurance provider that it objects to covering some contraception; it is the self-certification to which Wheaton objects, just as the University of Notre Dame had objected. Notre Dame lost in the Seventh Circuit, so in that circuit Wheaton should have lost as well, except that the Supreme Court protected it for the time being.

The Hobby Lobby majority actually played games with this accommodation, implying at one point that the nonprofit accommodation would pass muster under RFRA while dropping a footnote saying it wasn’t deciding the issue. Justice Kennedy’s concurrence also implied it was constitutional. Yet, the Court’s issuance of the injunction raised concerns that this accommodation might fail as well as the Obama Administration’s refusal to accommodate for-profit nonreligious corporations. The Court’s statement that the injunction was not a decision on the merits was cold comfort for women.

It was, all in all, a pretty bleak week for female employees across the country. The three female members of the Supreme Court, who dissented in Hobby Lobby, also dissented spiritedly from the Court’s apparent siding with Wheaton College.

The Rancor at the Court Shines a Light on RFRA’s Faults

From where I am sitting, though, there is finally some light at the end of the tunnel. After litigating Boerne v. Flores, I came to understand the dangers inherent in extreme religious liberty in ways few others could. It was not an easy education, nor always welcome, but it was impossible to ignore. So, after the Religious Freedom Restoration Act (“RFRA”) was declared unconstitutional in Boerne, I thought, “Good, that’s that.” But then, of course, the religious lobbyists ran back to Congress and demanded another bite of the apple of extreme religious protection. As the propaganda and misdirection swirled once again through the halls of Congress about the First Amendment and free exercise, I contacted every group I could think of that would be negatively affected by a new RFRA.

It was a classic case of shouting into the wind. I was a newly tenured upstart who had just won a big case at the Supreme Court, but big deal. In that era, it was still taboo to say that religious believers could be dangerous. Some groups politely thanked me, others hung up on me, while still others agreed with me privately but made it clear they would never oppose “religious liberty” in the public square—it was too politically risky, regardless who would be harmed. What was an academic to do? Over time, I gathered facts, started files, and wrote the first edition of God vs. the Gavel. And wrote column after column, and spoke, and wrote some more.

Now, some of those groups are in the forefront of fighting RFRA and the Hobby Lobby decision in Congress, with some demanding repeal and others demanding amendment. Music to my ears! It is a relief to me that the Supreme Court showed RFRA’s true light in Hobby Lobby, and then reinforced RFRA’s divisiveness with its quick Wheaton College ruling. In case anyone thought for a second that Hobby Lobby was a one-time gift for a couple of employers, Hobby Lobby and RFRA are a “gift” that will never stop taking until the latter is repealed.

For those thinking that we only need to protect women from this pernicious law, I can only tell you that that is beyond short-sighted. Don’t worry; I won’t be making any cold calls this time around. I am hoping, though, that the hundreds of organizations and millions of Americans who are enraged with the Hobby Lobby decision shift their attention from the Court and train it where it needs to be instead: on the members of Congress who are responsible for the religious rancor, the discrimination, and the shameful treatment of employees and women engendered by RFRA.

  • Joe Paulson

    I was raised Catholic & like a ton find no fault with contraceptives. The problem is not that the justices are Catholic. It is that they are conservative. Thomas converted to Catholicism to my understanding. Sotomayor is also Catholic. Kennedy is for gay rights. I think the “five Catholics” bit is used too loosely.

  • ingeborg oppenheimer

    marci, thanks for putting yourself, rather than just cold legal facts, into this column. it brings the situation much closer to the reader. i am not a lawyer, but would like to follow your recommendation to start qvetching to the only branch of the governnent over which we, the hapless citizens, have some influence. so – could you formulate for us the legal language to use in order to impress congress with our determination to see something done about this slippery slope that the hobby lobby decision has turned into?

  • Ted Harvatin

    The employer is not “denying” anything. These women are not getting fired for using contraceptives. the employer is not paying for it. Just like my employer not buying me a new car is not the same as “denying” me the right to drive.

  • myla ford

    Love your personal story at the beginning of this article!!

  • Peter Parrott

    Dear Marci: Our SCOTUS did not produce an “extreme” decision in Hobby Lobby. The extreme decision arose (instead) from a coercive federal regulation arising directly from the ACA. The failure of HHS to grant a reasonable exemption from that regulation caused the Hobby Lobby controversy. The 9-0 decisions against the current administration (such as in the Hosanna-Tabor case) indicate that the current administration has a tin ear about issues of faith. The current gang around our POTUS is not as smart as they think they are.

  • xuinkrbin

    As a prelude, how can a city be “controlled by Wheaton College and the Wheaton Bible Church”? Wouldn’t it be more accurate to say the People of the city heavily influenced whether or not the city was “dry”, the People concluded “you needed to be ‘saved’ to make it to Heaven”, and so on? After all, what are Wheaton College and Wheaton Bible Church but 501(c)3 corporations and is not the “prevailing ethos” of People opposed to RFRA exemptions to the contraception mandate “corporations are separate and apart from the actions or belief systems of their indi­vidual owners/employees/members” and, therefore, cannot exercise religion or do anything else? But I digress for this portion of the article is irrelevant to the main point it attempts to raise.

    First, why the highlighting of “the male Catholic members of the Supreme Court”? At no point does the religion of the Justices present itself in the court’s opinion, nor does Their sex. If One wants to persuade People the opinion is erroneous, One must avoid not-so-subtle anti-Catholic and anti-Male jabs. The reference to the “the male Catholic members of the Supreme Court” makes as much sense as for a Critic of the dissent to say, “It’s no coincidence that three of the four dissenters in Hobby Lobby were Jews with limited attachment to their religious heritage. Such Jews have always been uncomfortable with public displays of religion in the United States, and are especially hostile to the sorts of evangelical Christianity that motivates the owners of Hobby Lobby to seek religious exemptions from providing their employees with certain types of contraception. It’s also not surprising that three of the dissenting Justices are unmarried women, two of whom have never had children, because they see pregnancy as a disease in need of ‘preventive care’ rather than a blessing.” In both cases, such arguments are patently flawed and repugnant to constructive discourse.

    Secondly, even if the religion of the majority was relevant, at no point did the majority “declare[] that closely held corporations have souls and, therefore, can use their faith to deprive their female employees of reproductive health coverage”. Anyone having read the actual opinion would be able to see Your characterization is as false as it is cynical, raising the question of whether You have actually read the opinion.

    Additionally, Your assertion “the men who interpreted RFRA … granted [Wheaton College] an injunction” overlooks the fact the obviously deducible fact Justice Breyer, Who joined the Hobby Lobby join the majority in granting Wheaton College the injunction. [To Anyone Else keeping track, We so have in this article irrelevance, two ad hominems, false accusations, potential ignorance of actual jurisprudence, and a failure to consider all relevant facts.]

    Even if the Supreme Court were to ultimately rule in favor of the administration, granting the injunction at this point would still be a judicially correct move because, as the Supreme Court noted in Elrod v. Burns, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury” and even though, in Hobby Lobby, the court was able to dispose of the case with just statutory construction, it left open the possibility of reaching the question of constitutional rights, such as First Amendment freedoms, in another case. Since the Wheaton College case clearly raises the prospect of being such a case, the more cautious approach from a judicial perspective is to grant the injunction, further raising the question of Your familiarity with Free Exercise clause and/or RFRA jurisprudence.

    Likewise, Your claim the court “played games with this accommodation, implying at one point that the nonprofit accommodation would pass muster under RFRA while dropping a footnote saying it wasn’t deciding the issue” ignores the notion of the Ashwander principle which says, roughly, “Don’t decide a case which has not been argued in front of You.” For Someone with such an impressive legal background, I really am disappointed as to how You could miss such a basic principle of judicial procedure. Even then, it strains credulity to argue a court is “play[ing] games” when that court explicitly says it is not deciding the issue.

    Your description of Justice Kennedy’s concurrence conflates “constitutional” with “pass[ing] muster under RFRA”, a difference of which I know for a fact You are keenly aware, raising the question of whether or not You might be attempting to “pull a fast one” over Readers of this article.

    The obvious implication of the “played games” paragraph goes along these lines: “This court says the accommodation is okay. This court says the accommodation is not okay.” This apparent disconnect in logic would be good to point out if it were not for the fact (1) the court only said the accommodation might be okay for the Greens and Hahns to accept and (2) the very nature of RFRA necessitates such determinations be made on a case-by-case Objector-by-Objector basis. Your reputation as an Expert in RFRA proceeds You and the ignoring of such necessitation adds further weight to the idea You might be attempting to “pull a fast one” over Readers of this article.

    What’s more, the dissent in the Wheaton College decision would be more meaningful were it not chock full of flaws. However, Anyone having read both the Hobby Lobby opinion and the Wheaton College dissent can clearly see the dissent’s errors of both fact and logic, especially in light of the actual text of RFRA.

    You description of the post-Boerne actions of the congress as “religious lobbyists [running] back to Congress and demand[ing] another bite of the apple of extreme religious protection” ignores three facts: (1) the new version of RFRA provided stronger protections from federal laws, (2) was passed unanimously by both Houses of Congress, and (3) was unnecessary due to the fact Boerne only held RFRA as unconstitutional with respect to the restraints of state actions, leaving the restraints of federal action in tact. Again, Anyone having read the actual ruling and opinion of Boerne can see this fact. What this does to the “pulling a fast one” idea is left as an exercise for the Reader.

    Your description of RFRA having “faults” and how, in combination with Hobby Lobby it “will never stop taking” ignores the fact RFRA provides simple ways for a regulation to meet its requirements, such as avoid substantially burdening religious exercise and/or ensure the least restrictive means of advancing the government’s interest are used at all times. Meeting these requirements are not exactly difficult, even if they end up looking differently than We would otherwise want them to. As such, Your description is an example of the very hyperbole which so often “poisons” American discourse.