| January 13, 2014

Hobby Lobby Case Underscores That Liberty Is Tenable Only with Limited Government

The United States Supreme Court has agreed to hear a consolidated case against a particularly objectionable dictate of Obamacare—the mandate to employers to provide their employees with health insurance that specifically covers abortifacients.

Included in the case is a challenge brought by the David Green family, the owners and operators of Hobby Lobby, a chain of nearly 600 arts and crafts stores with headquarters in Oklahoma City.

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

At stake in the case is whether the First Amendment right to freely exercise religion applies to an individual like David Green not only in his private life as a believer, but also in his public life as the founder and CEO of a successful for-profit company.

Critics of the Hobby Lobby challenge have not framed the case in these terms. They suggest the case hinges on whether the First Amendment applies to corporations and then quickly insist that it does not.

Does that mean the Department of Health and Human Services mandate does not apply to corporations, either?

It is inconsistent to suggest that impersonal corporations can obey regulations, but not exercise rights. Regulations and rights apply only to persons, but they apply whether those persons are acting individually or within a corporation.

Given the confusion introduced by the “Are corporations persons?” question, though, the Supreme Court decision in this case will have implications not just for religious liberty, but for other First Amendment rights, as well.

Oral arguments are expected to begin in March, and the Court will likely rule in late June.

The justices will accept the Greens’ stated religious beliefs at face value. In other words, they will not attempt to determine whether the mandate actually violates the Greens’ Christian religion. The Greens have said it does; from a legal standpoint, that is evidence enough.

Instead, the burden will be on the lawyers of the Obama administration to articulate a clear and compelling public interest that justifies abridging the Greens’ religious liberty.

In previous rounds of the case, the Obama administration argued the mandate is justified in the name of “public health and gender equality.”

The idea that abortifacients somehow affirm gender equality is puzzling. To suggest that women need abortifacients to attain parity with men suggests that women lack something—that is, abortifacients—to be equal to men. It’s to suggest women are not inherently equal to men, but must deny what is unique to them—the capacity to conceive and bear a child—to be considered equal.

The argument that abortifacients are essential to public health is even more ironic. This argument is rich not only because abortifacients literally result in the loss of life, which is generally considered the antithesis of a positive health outcome, but also because the administration has already exempted numerous other employers from the mandate.

Negative rights, including the right to religious liberty, are tenable only within the proposition of limited government. As government mandates increase, so, too, does the probability that one of those mandates will abridge personal rights.

It is not easy to balance the competing desires for liberty and government-guaranteed goodies like health care, but, if the Supreme Court cares to preserve liberty at all, it will circumscribe government officials with the limiting principles to which they have already agreed—those limiting principles outlined in the U.S. Constitution.

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

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