Law & Principles

Religious Liberty ‘Has Everything to Do with the Limits of the State’

March 12, 2014

Tina Korbe Dzurisin

Earlier this year, the United States Supreme Court agreed to hear a consolidated case against the Obamacare abortifacient mandate, including the challenge brought by the David Green family, the owners and operators of Oklahoma City-based Hobby Lobby.

The Greens—Christians who oppose abortion—claim they cannot in good conscience pay for their employees to have free access to abortion-inducing drugs, which the mandate would force them to do.

As president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, Dr. Russell Moore has closely followed this case from its inception—and he’s bullish about the outcome.

At a February 5 policy briefing at OCPA, Moore said he anticipates the Supreme Court will side with the Greens against the federal government.

Two important factors fuel his optimism: the current composition of the Supreme Court and the Religious Freedom Restoration Act.

Justice Anthony Kennedy—who is widely considered the swing vote on the Supreme Court—has a solid voting record on religious liberty cases, according to Moore.

The Religious Freedom Restoration Act specifies that the federal government must demonstrate a clear and compelling public interest to justify the abridgment of religious liberty—and may only burden the free exercise of religion by the least restrictive available means.

The Obamacare abortifacient mandate does not meet the criteria. The administration argues that “public health and gender equality” justify the mandate. That’s a dubious claim in itself, but, even supposing “public health and gender equality” somehow demanded access to abortifacients, requiring employers to provide employees with insurance that covers these drugs is clearly not the “least restrictive” means to ensure that access.

“The law is with us on this,” Moore said.

Yet, even as he expressed confidence on this particular case, Moore cautioned his listeners against complacence about religious liberty.

If the Supreme Court does by chance decide in favor of the administration—if Hobby Lobby loses—the public square will narrow, civil society will shrink and government will grow, Moore predicted.

“I think we’re going to win this case, but we need to recognize that, even if and when we do, the religious liberty issue is going to remain with us and we are going to have to be vigilant,” he continued.

In part, the religious liberty question will remain open because of a persistent attempt by legislators and the courts to divorce the two religious liberty clauses of the first amendment—the so-called “free exercise” and “establishment” clauses.

Yet, as Moore pointed out, the two clauses stand together. A government that restricts the free exercise of religion is establishing a religion, he said.

Beware the pseudo-pluralism of the government, Moore added. Pseudo-pluralism aims to pave over all differences of genuine conviction to arrive at a religion that has no questions about government limits.

“This is an issue that ought to matter to every American citizen,” he said. “We need to understand that this has everything to do with the limits of the state.”

Tina Korbe Dzurisin is a research associate at OCPA. Formerly, she was a staff writer at The Heritage Foundation and an associate editor at