Published July 30, 2012
Faith just won a round in court.
As President Obama’s mandated insurance coverage of sterilization, contraception, and abortion-inducing drugs takes effect on August 1 for ordinary businesses, the Health and Human Services mandate’s ultimate survival suddenly appears blessedly jeopardized.
Federal district Judge John J. Kane of Colorado on Friday issued a temporary injunction blocking the mandate from being applied to Hercules Industries, a family-owned manufacturer of air-conditioning products.
That the order comes from a non-conservative judge – Kane is a former public defender and Peace Corps deputy director sponsored by liberal former Sen. Gary Hart and appointed by Democratic President Jimmy Carter – is an especially huge development, striking more deeply at the mandate than conventional wisdom anticipated.
Most of the attention to the fight against the mandate has focused on faith-affiliated schools and charitable institutions, many of them Catholic but some Protestant, which argue that the mandate grossly infringes their First Amendment rights to free exercise of religion. Dozens of lawsuits from such institutions are pending.
Comparatively little attention, though, had been paid to the private businesses that also object to paying for prescriptive contraception, sterilization or abortifacients. Left-leaning observers seemed to blithely assume that no officially secular organizations had a leg to stand on when claiming a faith-based exemption from a federal, executive edict.
Judge Kane utterly destroyed that notion. Making clear that such an injunction can only be issued before full consideration of the case if the plaintiff has “a likelihood of success on the merits” and risks a “threat of irreparable harm,” Kane still imposed what he termed this “extraordinary remedy” to block implementation of the mandate against Hercules Industries.
While the injunction doesn’t block the mandate nationwide, it sends an unmistakable message that the HHS requirement will be on shaky legal ground wherever challenged.
Citing precedent, Kane wrote that the weakness of the mandate’s legal position looks “serious, substantial, difficult and doubtful” based on statutory grounds alone, without even considering the significant constitutional challenges raised by Hercules. As Kane summed it up, the government’s stance amounted to an assertion that “a for-profit, secular employer… cannot engage in an exercise of religion.” This is poppycock – and dangerous poppycock at that. It amounts to a claim that an individual employer, or a closely-held family corporation, does not enjoy the right to religious exercise unless those rights are channeled through a church in a formal worship setting.
In effect, it says only churches, not individuals or family businesses, have protections for what Madison and Jefferson called “the rights of conscience.”
In the text or footnotes of his decision, Kane used strong language against various arguments put forth by the Obama administration. As in: “I reject it out of hand.” And: “a distinction without substance.” Another argument is “irrelevant in this context.” And “the balance of the equities tip strongly [my emphasis added] in favor of injunctive relief.”
The ramifications of this decision could be enormous. If even a secular entity enjoys a “likelihood of success” on the merits of the challenge to Obama’s sweeping edict, then the dozens of suits filed by explicitly faith-related institutions probably enjoy a particularly strong likelihood of victory in court.
It is worth noting that the Supreme Court already has devastatingly shot down the Obama administration’s cramped interpretation of religious liberty in other contexts. In a unanimous decision earlier this year – yes, unanimous, with even the most liberal justices, including Obama’s own two appointments ruling against the administration – the high court in Hosanna-Tabor v. EEOC blasted Obama’s position as “untenable,” “remarkable,” “extreme,” and possessing “no merit.”
Granted, the specific issue at hand in Hosanna-Tabor was different from the one in the Hercules case. What is very similar, however, is that in both cases – and in several others pushed by the Obama administration – the Obama team seeks to define religious liberty extremely narrowly while asserting that government has “compelling interests” in overriding various religious concerns. The administration positions profoundly trample on a 400-year American tradition of leaving wide room for faith to operate, unfettered by state prescription or proscription.
On religious freedom, the Obama legal team is a veritable Augean Stables of faith-limiting, legal-theory detritus. It is eminently appropriate that these stables be overcome by a company called Hercules.
Quin Hillyer is a Senior Fellow for the Center for Individual Freedom and a Senior Editor of The American Spectator.