Free Market

BYU Law Professor Opposes Religious Exemptions to Obamacare

In an opinion piece at the Washington Post, BYU law professor Frederick Gedicks argues against business owners receiving religious exemptions to laws to which they morally object.

The most well known case in this regard is the ongoing lawsuit by Hobby Lobby against the contraception mandates in the (so-called) Patient Protection and Affordable Care Act. This company is owned by the Green family, who are devout Evangelical Christians who believe that life begins at fertilization. As such, they object to being compelled to offer health insurance plans that offer all forms of contraception—including abortifacients that prevent a fertilized egg from implanting in the uterus.

Three options are available to the Green family: comply with the law and violate their religious beliefs, break the law and face severe fines, or sell or close the business. Thus, the lawsuit.

Professor Gedicks dismisses this and similar cases outright, noting that “The businesses in these cases are not churches, or even nonprofit hospitals or universities with religious affiliations.” In other words, because the organization does not exist to promote a religious cause, Gedicks argues that its owners should be prohibited from “imposing” their religious beliefs upon employees. Here he elaborates on this point:

Exempting ordinary, nonreligious, profit-seeking businesses from a general law because of the religious beliefs of their owners would be extraordinary, especially when doing so would shift the costs of observing those beliefs to those of other faiths or no faith. The threat to religious liberty, then, comes from the prospect that the court might permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees who do not share them by forcing employees to pay hundreds of dollars or more out-of-pocket each year for contraception and related services that should be covered under the law.

This argument only makes sense if the employees were coerced into their relationship with the company. Since this is not the case, one cannot rationally conclude that the owners’ religious views are being “imposed” upon persons who have voluntarily agreed to work for the owner and are free at any time to quit. The imposition in this case comes not from the Green family, but from the government.

Gedicks then argues that “The First Amendment’s Establishment Clause prevents the government from requiring people to bear the burdens of religions to which they do not belong and whose teachings they do not practice.” This seems to be a warped interpretation of what the clause says, namely, “Congress shall make no law respecting an establishment of religion…” This means that the establishment of a national religion by Congress is prohibited, as is the preference by the federal government of one religion over another.

Respecting a business owner’s religious views—views that may alter the services or goods he provides to others—is not a “preference” shown by the government of any one religion over another. Rather, it is a protection of that individual’s own beliefs, and restraint against violating them.

At its core, this is an issue about property rights—not religious liberty.

And yet Gedicks would have those rights denied, apparently agreeing with the New Mexico Supreme Court that a suppression of one’s beliefs is the price of doing business. He writes that an exemption for business owners objecting on religious grounds would be “directing the women who work for these businesses to bear the cost of the owners’ anti-contraception religion” and that in Hobby Lobby’s case, its 13,000 employees “would underwrite the religious beliefs of a single family.”

Using this same logic, businesses should be compelled to open on Sunday if employees or customers desire it to be so, notwithstanding the religious views and personal preferences of their owners. Employees should be given salary increases rather than corporate money being used for philanthropic purposes in line with the owners’ beliefs. And as with the New Mexico case, business owners believing that marriage is only between a man and a woman should be compelled, by law, to offer their goods and services to homosexual couples seeking to marry.

People should, in Gedick’s view, be “free from bearing the burdens of their employer’s faith.” But Hobby Lobby’s owners are not punishing employees who obtain and use contraception. The Green family may object on religious grounds to such actions, but they are not seeking retribution against anybody for their decision to seek an abortion. Rather, they are asking that they not be forced to subsidize such behavior.

Individuals should instead be free from bearing the burdens of social do-gooders wielding political power to impose their ideals upon the masses. No individual is entitled to the goods and services provided by others who would be compelled to violate their religious beliefs in the process.