The 10th Circuit Takes a Detour to a Win for Hobby Lobby

The news from the 10th Circuit is good, as far as it goes. A unanimous eight-judge panel ruled last Thursday that Hobby Lobby should not have to pay $475 million in fines to the extortion racket known as ObamaCare while it challenges the constitutionality of the Health and Human Services abortion pill mandate. That's good because eight judges instead of three is unusual, and a unanimous decision is more unusual still.

The court's reasoning also provides hope: it seemed to steer away from the treacherous free exercise clause, arguing that since the Supreme Court has upheld the right of corporations to engage in political speech, it would hardly make sense to deprive them of the right of religious speech. This shift from free exercise to free speech has occurred before. For instance, in West Virginia State Board of Education v. Barnette [319 U.S. 624 (1943)] Jehovah's Witnesses refused to participate in a public school flag ceremony on religious grounds; but the Supreme Court ruled in their favor because the government cannot compel speech of any kind.

The Department of Justice countered by claiming that when a for-profit business exempts itself from requirements that violate its religious beliefs it imposes those beliefs on its employees. That argument is not new. It stems from several odious free exercise opinions by Warren Burger and Sandra Day O'Connor, in particular United States v. Lee (1982) which denied an Amish employer a religious exemption from withholding employee Social Security tax. If the government allows such an exemption to stand, Lee implied, it is in effect establishing religion.

This confusion of free exercise with establishment is not at all surprising because Christian oppression of religious minorities has been cited as "proof" of establishment since at least the early 1960s. In his concurrence with McGowan v. Maryland (1961) William Douglas was already insisting that the "reverse side" of establishment is a "burden" on free exercise.

But the great teaching moment came two years later in Justice Brennan's concurrence with Abingdon v. Schempp, the 1963 school prayer case that banished the Bible from the classroom and set the ground rules for decades of identity politics in robes. The law being challenged in Schempp offered a free choice to opt out of religious exercises, but that choice itself, Brennan pontificated, was coercion. Opting out exposed non-Christians to peer pressure from Christian children, which Brennan claimed was no different than administering a McCarthyite loyalty oath. It violated the non-Christians' free exercise rights, and (Brennan's actual objective) relieved the plaintiff of the obligation to present specific evidence of government coercion.

In the majority opinion this relief appears as the seemingly innocent observation that "a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended." Just how a government could establish religion without coercing any form of compliance is not explained. But, never mind. In almost no time at all this "no need for evidence" rule was expanded by Flast v. Cohen (1968) to allow taxpayer standing in defiance of Article III. After all, if presenting an establishment clause case requires no evidence, doesn't the nuisance of demonstrating injury just to establish standing appear both onerous and somewhat quaint?

The court did not stop there. Schempp's pointed circumscription of Christian free exercise rights carries the doctrine one step farther: while "the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs." (Emphasis added)

This is why free exercise arguments by Christians are treacherous. Schempp sent a clear message that whenever free exercise rights are violated it is Christianity's bad, and the government's refusal to intervene on behalf of non-Christians amounts to an establishment of religion. That might be true if the republic had failed, the majority invariably ruled, and (miraculously) the judiciary refrained from activism in the name of identity politics. However, over the past sixty years in matters of religion both majority rule and judicial restraint have been in short supply.

What has emerged instead is a free exercise double standard perfectly illustrated by the Lee decision and the DOJ's argument against exempting Hobby Lobby from the HHS mandate. From the left's perspective, the controlling issue is not between the government and Hobby Lobby, but between the free exercise rights of Hobby Lobby and those of its employees. Since there is no need to provide evidence that specific employees' religious rights have been infringed, Hobby Lobby loses this zero-sum game by default because it bears the stigma of "religion" whereas its employees "religion", if any, is unknown.

Unknown. Yet Schempp defined a free exercise violation as "the coercive effect of the enactment as it operates against him in the practice of his religion." If that is what must occur, then how does a woman's "burden" of providing for her own contraception impede the (not described) practice of her (unidentified) religion? Is popping a morning after pill a religious ritual? If so, can it be endorsed, much less mandated or financially supported, by the government?

In the real world the answer is not difficult. No. However, when free exercise arrives at the ball in an establishment gown, establishment clause rules still apply and the Schempp requirement to show government coercion is out the window. What we end up with is exactly what Brennan gave us and what DOJ is in effect demanding: a free exercise advisory opinion that decides an establishment clause question. As in Brennan's Schempp concurrence, identity politics is the only sheriff in town and the bad guys are Christians. Or Catholic bishops. Or Hobby Lobby. Or whoever's neck happens to be on the ObamaCare block.

So the news from the 10th Circuit is only good as far as it goes, because the Supreme Court has at least three, and perhaps four, justices for whom constitutionality is a false value, the practice of identity politics is so deeply ingrained as to be beyond eradicating, and Citizens United and its defense of corporate speech are anathema. And they have at their disposal a battery of "tests" that are little more than shopworn excuses for punishing the religious "enemy" in Schempp's evidence-free vacuum.

The best known is the Lemon Test, which has three "prongs": the law must have a secular purpose; its primary effect must be secular; and it cannot cause excessive entanglement with religion. Sounds reasonable, but Lemon is actually the establishment clause mother lode of "You've got to be kidding" moments. All three prongs are entirely subjective, and failing even one prong defeats the law. So in practice Lemon says with a perfectly straight face that the court can strike down a law without considering what it does, or what it was intended to do. Better yet, the entanglement prong invites anti-Christian bias, since its role is to strike down a law that could not be struck down using either the purpose or effect prong, and so is by definition, religion-neutral. So much for neutrality toward religion.

It should surprise no one that their establishment clause dogma has had progressives barking up some very strange trees. They've told us that freedom to choose is coercion. That legislative purpose is established retroactively by someone breaking the law.That effect is determined by ferreting out hidden purposes, not observing results. That a religious symbol can be made secular by making it more symbolic. That the free exercise clause protects religious liberty when it is ignored, but undermines liberty when it is enforced. That rights endowed by the Creator are secular. That the part is greater than the whole, so the word "prayer" means more than the statute in which it appears. That government makes a divisive announcement by concealing a religious purpose. That the court should not look too closely at lower court decisions they agree with because it might discover they are wrong. That historical fact is trumped by "a sense of the past." That the Constitution should give way to "public discourse at the present time." And that everything will turn out well in the end because the court's hostility toward religion secures religious liberty for all.

There's no reason whatever to expect better from them next time.

Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback


If you experience technical problems, please write to