Expanding the religious liberty argument against ObamaCare

A bill being considered in Congress would allow individuals a religious exemption from ObamaCare. The bill, named the Equitable Access to Care and Health (EACH) Act, would make it so people could opt out of the mandate to buy health insurance by signing a sworn statement saying they have religious objections to some of what is covered by health insurance.

The way the Affordable Care Act currently stands, when it goes into effect in 2014, individuals will be required to buy health insurance or pay a tax. This amendment would create away for those whose "sincerely held religious beliefs would cause the individual to object to medical health care that would be covered under such coverage" to not buy health insurance and not pay the tax. The exemption could be used by Catholics and evangelicals who oppose some or all contraceptives, as well as others.

Creating a legal exemption that more than 50 percent of the country could ask for would, presumably, effectively kill health care.

The bill is currently being reviewed by the House Ways and Means Committee, but may not ever go to a vote.

Whether or not the EACH Act becomes law, though, it shows another angle of the conflict between those who want universal health care and those who believe that infringes on religious liberty. It's also another way that those opposed to ObamaCare are seeking to undermine it anyway they can before it becomes law.

The bill was sponsored by Republican Congressman Aaron Schock from Peoria, Illinois, who has voted to repeal ObamaCare, and is on record calling the law "deeply flawed."

Schock is considered to be a fiscal conservative, moderate on social issues. He is affiliated with a Conservative Baptist Association church and has positioned himself as someone generally supportive of social conservatives and of the sorts of groups who have have seen ObamaCare as an assault on their religious exercise, but with a stronger emphasis on economics. His main critique of the Democratic health care plan has been its "potential budget busting impact and negative economic consequences." He has said,

I believe that the Affordable Care Act has hurt job creation, burdened small businesses, put government bureaucrats between patients and their doctors, and taken the flexibility away from states like Illinois to make their own health care decisions.

The EACH Act comes at ObamaCare from an entirely different angle, though, having more in common with the scores of non-profit and business lawsuits over the contraception mandate than debates about financial costs and consequence. Those legal battles have, so far, only concerned non-profits and businesses required to provide health care for their employees, though. This bill takes that same argument and makes it on behalf of individuals.

Schock's bill suggests this front of that fight could be dramatically expanded, with millions of individuals claiming health care violates their Constitutionally guaranteed right to the free exercise of their religion.

The EACH act has been co-sponsored by 50 Republicans and 26 Democrats.

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A tax on sex outside of marriage

Chuck Colson died a year ago today. The one-time Watergate criminal, who converted to evangelical Christianity after his indictment, played a pivotal role in the political mobilization of American evangelicals, particularly by popularizing and promoting the work of Francis Schaeffer and the idea of "worldviews," and also in convincing evangelicals to work with Catholics on common social causes.

In one of his very last daily radio commentaries, broadcast April 2, Colson argued tax policies necessarily reflects legislator's worldview, and that conceptions of "sin" are important to the shape that those tax policies take. He said,

... the number of sin taxes is increasing, perhaps because legislators simply want to be on record as opposing the 'sins' of alcohol, smoking, and even sugary drinks! 

It’s odd, though, that despite this feeding frenzy, nobody is proposing to tax an activity that nearly every previous generation saw as truly sinful and harmful to society: sexual promiscuity. 

In fact, the word 'promiscuity' is no longer uttered after the word 'sexual' in polite company, although the word 'freedom' certainly is. And we actually celebrate sexual promiscuity. 

... now the Sexual Left not only excuses sin, they want us to actually subsidize it.

It's a clever argument, partly playfully facetious, built not on argument for a policy position per se but the deftness of the reversal of the policy position being opposed, an argument via subversion, mutates mutandis.

That style was not incidental to his success, I don't think.

The late Colson's radio commentaries can be heard here. Colson's columns for Christianity Today, including those he co-wrote with the Catholic theologian Robert P. George, can be found here. The radio commentaries of those who have continued his work -- including those of popular Dietrich Bonhoeffer biographer Eric Metaxas -- can be heard here.

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The religious practices of corporate alter egos

Are businesses, legally speaking, just the alter-egos of their owners?

The absolute clearest, most on-point exploration of the issues actually at stake in the religious liberty court cases involving for-profit business and the new health care rules is this piece by Howard M. Friedman, a former law professor and the blogger at Religion Clause. He raises this question, looking at one way the argument is being made for the religious freedoms of corporations.

Friedman notes that, in addition to questions about corporate personhood and the constitutional guarantees about exercise of religion, there are some curious quandaries about corporate law being brought up by these cases, specifically in the ways owners appear to be undermining the sorts of legal distinctions intended to protect corporate owners.

Friedman writes:

In the Affordable Care Act cases, some courts have avoided the difficult issue of whether a business has religious conscience rights by instead concluding that the business is so closely identified with its owners that it may assert the owners’ religious objections as its own.

This idea—that a corporation and its owners should be treated as the same person—is a well-known concept in corporate law, commonly referred to it as “piercing the corporate veil.” Most of the time, lawyers warn their corporate clients to do everything possible to avoid this “piercing,” since the doctrine is usually invoked when creditors of a business are making claims against the personal assets of a company’s shareholders, seeking to recoup their losses from an insolvent business by going after its owners. There is a vast amount of case law on when a court should allow “piercing the corporate veil” to reach shareholders’ personal assets, often focusing on abuse of the corporate form, misleading of creditors, or lack of corporate formalities. Business lawyers look to whether the corporation is the mere alter ego of its owners and routinely advise their corporate clients to emphasize the corporation’s separate existence from its owners.

However, the pleadings filed in many of the contraceptive mandate challenges purposely blur this line, collapsing the beliefs of the business with its owners, inviting “piercing.”

The distinction between an owner or a shareholder and the corporation itself, as Friedman notes, is an important legal underpinning of modern capitalism. What happens to these companies if they succeed in obliterating that distinction remains to be seen, but it could be serious.

The entire piece is well worth reading:  My Business, Myself: Piercing the Corporate Veil

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What 'religious liberty' means

The lower courts considering religious objections to the new health care law have -- up to this point -- reached varying and sometimes conflicting conclusions. The legal precedents in these cases about corporatations' religious practices aren't particularly clear, it seems. The unanswered questions are bound to eventually go to the Supreme Court.

A bit of a consensus is emerging, though -- a coherent argument -- among the federal courts that have rejected the religious objections to the Obama administration's mandate that employee health insurance include coverage of birth control. The courts have sidestepped the question of whether corporations have religion, though noting that that's the fundamental issue, but have made a pair of critical arguments about what "religious liberty" means.

Or, more precisely, what religious liberty doesn't mean.

This can be seen in two rulings, as Religion Clause points out.

Judges Carol E. Jackson and Sarah Evans Barker both have argued that "religious liberty" can't mean requiring employees, as a condition of their employment, to adhere to owners' religious beliefs.

Here they flip the religious liberty argument on its head, and make the case that those who say they're defending "religious liberty" are actually asking for the right to impose religious beliefs on individuals who may not personally hold those beliefs. I.e., that they're saying it's a protected practice of their religions to require people who don't adhere to those religions to follow its precepts anyway. This, the two courts have said, is not protected by the "free exercise" clause of the First Amendment or the Religious Freedom Restoration Act.

Jackson:

The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [a health care] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. 

[The Religious Freedom Restoration Act] is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.

 Barker:

We can imagine a wide variety of individual behaviors that might give rise to religiously-based scruples or opposition, such as alcohol consumption or using drugs or tobacco, or homosexual-related behaviors, all of which can threaten health conditions requiring treatment and care. If the financial support for health care coverage of which Plaintiffs complain constitutes a substantial burden, secular companies owned by individuals objecting on religious grounds to such behaviors, including those businesses owned by individuals objecting on religious grounds to all modern medical care, could seek exemptions from employer-provided health care coverage for a myriad of health care needs, or for that matter, for any health care at all to its employees.

These arguments are not so distinct from the question of who or what can "have" or "exercise" a religion, though. Not as separable from that problem as the courts seem to suppose. In fact, the assumptions built into both arguments seem to be that one can only individuals practice religion, and individuals' religious exercises are only valid, only constitutionally protected, insofar as that practices is not a matter of imposing a particular religious exercises on others.

A counter argument to this -- an argument I think has to be taken very seriously, even though (or, rather, because) the argument is essentially that pluralistic societies are impossible -- can be found in First Things. Greg Forster, writing about Starbucks making a political statement, writes:

This determination to protect people’s right to live in an amoral system of economic work is directly connected to the current threat to religious liberty. The basic idea is that only individuals have conscience rights; institutions like businesses are expected to be morally and even culturally neutral. This seems to be easily accomplished by giving every individual employee a veto power over the firm’s ability to say or do anything morally or culturally significant. However, in reality all human action is moral and cultural; this system doesn’t actually remove moral and cultural formation from business, it just requires businesses to conform to whatever beliefs are so socially predominant that the majority don’t even recognize them as beliefs

The question of the identity of the subject who has religion, of the definition of the agent doing the things religions' entail, has to be answered, as I see it. The question of what "religious liberty" means can only be answered when that prior question has been dealt with: answers to one entail certain answers to the other.

Judges Jackson and Barker haven't answer the question of who can have or practice religion, but they have begun to work out what one answer would mean for the definition of "religious liberty" and the scope of that sort of subject's "free exercise thereof." It's the beginnings, if nothing more, of a coherent and on-point answer to this question of the meaning of free religious exercise that has arisen in response to Obamacare.

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When Hobby Lobby decided it was opposed to providing birth control

As of today, the arts and crafts store Hobby Lobby, Inc., owes the federal government as much as $2.6 million. Tomorrow that may well be up to $3.9, and the day after tomorrow $5.2.

The company has committed to not paying these fines, claiming that they are being levied because the company refuses to compromise its religious beliefs about the evil of "abortion-causing" birth control.

As The Daily Oklahoman reports, the,

Oklahoma City-based Hobby Lobby will defy a federal law that requires employee health care plans to provide insurance coverage for types of contraception that the firm's owners consider to be “abortion-causing drugs and devices,” an attorney for the company said Thursday.

With Wednesday's rejection of an emergency stay of that federal health care law by Supreme Court Justice Sonia Sotomayor, Hobby Lobby and sister company Mardel could be subject to fines of up to $1.3 million a day beginning Tuesday.

'They're not going to comply with the mandate,' said Kyle Duncan, general counsel of The Beckett Fund for Religious Liberty, which is representing the company. 'They're not going to offer coverage for abortion-inducing drugs in the insurance plan.'

This stand will likely mean the corporation is hailed as modern day martyrs by some Christian conservatives. They might receive the same show of support that the fast food restaurant Chik-fil-A got when the the company's Chief Operating Officer made statements opposing same-sex marriage. This action -- refusing to provide employee health insurance that includes coverage of certain sorts of birth control, and refusing to pay the fine for breaking the law -- will be understood and interpreted as a stand for the robustness of religious liberty.

It turns out, though, that the verb tense of the lawyer's defiant claim,  "They're not going to offer coverage for abortion-inducing drugs in the insurance plan," is pretty important. They're not "going to," in the future.

But they did, in the past.

Legally, the question in the lawsuit Hobby Lobby has filed against the Department of Health and Human Services is more esoteric. The question is whether or not for-profit corporations have religions and exercise religion in the way that's talked about in the First Amendment.

That question isn't particularly relevant to the bulk of those concerned about this case, but that is the question before the courts. Publicly, among those most closely following these developments, the case is understood as actually being about religious liberty in American and the Obama administration's alleged attempts to limit the meaning of "religious exercise" to mere matters of belief and acts of worship, so that anything else that's done as the practice or outworking of piety, such as running a business, can only be strictly secular. For these folks, Hobby Lobby's mounting, unpaid fines are testament to its bold defense of robust religious liberty.

As one opinion-writer depicts this match-up, this is nothing less than a "war against [the] principled sector of the national economy," where,

The federal government is imposing a $1.3 million daily fine to destroy the Green family’s business or otherwise coerce them into violating their sincerely held religious convictions about the life of the unborn.

One problem with that: the company only very recently stopped providing insurance coverage of the supposedly objectionable forms of birth control to its employees.

This strong, strong stance seems to date, actually, only from the time the company learned it would soon be required by law to provide the sort of health insurance that they were already providing.

Hobby Lobby is currently facing mounting millions of dollars of fines for refusing to do what it previously did voluntarily.

For the lawsuit the corporation filed:

Recently, after learning about the nationally prominent HHS mandate controversy, Hobby Lobby re-examined its insurance policy to ensure they continued to be consistent with its faith. During that re-examination, Hobby Lobby discovered that the formulary for its prescription drug policy included two drugs -- Plan B and Ella -- that could cause an abortion. Coverage of these drugs was not included knowingly or deliberately by the Green family [members of which own the company via a trust]. Such coverage is out of step with the rest of Hobby Lobby's policies, which explicitly exclude abortion-causing contraceptive devices and pregnancy-termination drugs. Hobby Lobby therefore immediately excluded the inconsistent drugs from its policies. 

In other words, the company only took a stand -- a supposedly religious stand -- after this issue became a political issue.

The religious commitment of the people who own and run Hobby Lobby isn't in dispute. Either in the court case or anywhere else. Nor is there any question about whether or not they have made decisions that were bad for the bottom line because of those religious commitments. It's quite curious though, and I'd even say suspect, that this issue became an issue, a tenet, purportedly, of that religion the owners are committed to, after the political brouhaha over Obamacare.

While the lawyers and the plaintiffs are claiming the prohibition against certain forms of birth control are long-standing tenets of the corporation's faith -- in addition to the claim that a for-profit corporation can have and practice a faith -- the evidence the lawyers have offered suggests it's rather a new-found doctrine.

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The contraception coverage argument in a phrase

Perhaps it will ultimately be a matter of phrasing.

A third for-profit corporation has filed suit against the Obama administration's Health and Human Services' mandate that health insurance plans include coverage of contraceptives. In addition to a small flotilla of Catholic charities suing over this rule, there are also these three specific cases, where the question is finally whether or not the First Amendment's protection of religious exercise includes corporations. That is, whether or not corporations have inalienable human rights and whether or not they can in some sense be religious.

The latest suit is from Conestoga Wood Specialties Corporation, a woodworking company based in Landcaster Country, Penn. With the suit, the corporation joins and follows the arts-and-crafts chain Hobby Lobby and the Christian book publisher Tyndale House, making the case in federal court that corporations have religions.

The news story in the Philadelphia Inquirer reporting on the suit says the company, which has more than 900 employees and makes cabinets, is owned by Mennonites. Reporter Amy Worden describes Conestoga Wood Specialties as a "Mennonite-owned cabinetmaker." This seems to be a fact that no one disputes.

The headline for the piece, however, says the company is a "Mennonite firm." This is exactly what's in dispute.

Whether or not there's an important distinction between the two phrases is, it seems, basically the crux of this case.

The Obama administration's case is that a Mennonite-owned company is not the same thing as a Mennonite company. After all, there are more than 900 people working there. The religious practices of the owners may include decisions they make in running the company, but the corporation does not belong to any church. That's the argument.

Others disagree. Or, at least, favor the kind of phrasing that takes as fact what's disputed in the court case. For example:

RT @mzhemingway Mennonite company sues Obama admin over HHS mandate: bit.ly/TRQHiK
— Thomas S. Kidd (@ThomasSKidd) December 11, 2012

Then, of course, there are those like the editor at First Things whose headline elides  and implicitly denies any meaningful difference between a "Mennonite-owned corporation" and a "Mennonite corporation" and all the Mennonites.

The way one views this argument may be a matter of assumptions, really. Assumptions that come out in questions of phrasing. It just depends on how you put it.

Update (Dec. 13): The Philadelphia Inquirer has updated its headline to read "A Mennonite firm sues over Obamacare contraception coverage." Whether because the reporter or someone raised the issue I mention here or for some other reason, I do not know.

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The courts' disagreement over corporations having religion

Can corporations practice religion? The courts disagree.

In two different federal courts, in two different cases where for-profit companies with evangelical owners are suing the government over the Obama administration's mandate that health insurance include contraception coverage, two very different conclusions were reached. 

In Washington D.C., a federal court granted the Christian publisher Tyndale House an injunction last week, exempting the company from the daily fines it would accrue starting in January for not following the new health care law. The granted injunction is a ruling that the company has a good case, and should be treated -- at least until the final outcome -- as if it has won. Three days later, however, in Oklahoma, a federal court did not grant the arts and crafts store Hobby Lobby an injunction. The two cases are almost identical, yet the courts ruled in opposite ways. 

Pretty much, too, they ruled opposite ways because of what seems to me to be the core question, which is whether or not corporations can have or exercise religion in the sense indicated by the First Amendment. 

In the first case, Judge Reggie Walton, an appointee of the second President Bush, ruled that "the beliefs of Tyndale and its owners are indistinguishable."

In the second case, Judge Joe Heaton, also a George W. Bush appointee, ruled that corporate exercise of religion is "largely uncharted waters," and said Hobby Lobby's lawyers hadn't cited any legal precedent for the idea "that secular, for-profit corporations such as Hobby Lobby [...] have a constitutional right to the free exercise of religion," despite the fact there's no legal question about the owner's religious beliefs.

One might conclude that Walton and Heaton have a fairly straightforward disagreement about what the case law says, but the difference seems more subtle than that.

Heaton, as I read his ruling, says there's no evidence that for-profit corporations can practice religion. Walton actually agrees, though, despite ruling differently.

Walton writes in his ruling that he "declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of [...] the Free Exercise Clause," and cites three cases where the question was left unresolved, First Nat'l Bank v. Bellotti in 1978; Church of Scientology of Cal. v. Cazares in 1981; and Stormans, Inc. v. Selecky in 2009. What he does then, though, is where the difference lies. Walton, in the first move, grants that corporations maybe can't have religion in any meaningful sense and then, in a second move says, that this particular for-profit company "Tyndale has standing to assert the free exercise rights of its owners."

The corporation can act as a kind of carrier of religion or religious practice, while not itself having or exercising said religion.

Walton ruled:

"Tyndale is a closely-held corporation owned by four entities united by their Christian faith, each of which plays a distinct role in achieving shared, religious objectives. Christian principles, prayer, and activities are pervasive at Tyndale, and the company’s ownership structure is designed to ensure that it never strays from its faith-oriented mission. The Court has no reason to doubt, moreover, that Tyndale's religious objection to providing insurance coverage for certain contraceptives reflects the beliefs of Tyndale's owners. Nor is there any dispute that Tyndale's primary owner, the Foundation, can 'exercise religion' in its own right, given that it is a non-profit religious organization."

This is either a really smart solution to the technicality of the problem, or a rather crazy begging of the question that only re-instantiates all the confusions it's supposed to clear up.

It remains to be seen.

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The ignored question of corporations' religious freedom

A federal court ruling handed down in Oklahoma yesterday said that for-profit corporations don't have rights -- constitutional, inalienable, or otherwise -- to freely exercise their religion.

The court case involves a chain of arts and crafts stores called Hobby Lobby, owned by a family-established trust, in a suit with the Obama administration over the Health and Human Services mandate requiring health insurance plans include birth control coverage. This ruling will be appealed. Its not anything like the final word on this. However, the court has made clear that the issue in this case is who or what can have a religion.

Who or what can practice a religion.

The clarification of the issue is appreciated, since the assumptions out there in these claims of "freedom of religion" are actually quite confounding, and since, as far as I can tell, no one from the many many groups or among the many many critics opposing this HHS mandate seem interested in explaining the issues. Apparently it's enough to be appalled that the Obama administration is assaulting our first freedom and obliterating freedom of religion, without ever being clear about the messy matters of corporate personhood and religious practice.

Which this 28-page ruling by U.S. District Court Judge Joe Heaton points out:

"Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion .... The question of whether the Greens can establish a free exercise constitutional violation by reason of restrictions or requirements imposed on general business corporations they own or control involves largely uncharted waters." 

In short, this ruling asks the very basic question that those up in arms over religious freedom have consistently refused to answer: what sense does "religious freedom" have for a corporate entity?

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The religion of Hobby Lobby

The 28th lawsuit against the Obama Administration's "birth control mandate" was filed this week. This one was filed of behalf the chain of arts-and-crafts stores, Hobby Lobby.

According to Christianity Today, Hobby Lobby is "the first non-Catholic business to file suit."

While the question of what it means, exactly, for a for-profit corporation to "have a religion" is still not clear to me, this case also involves the question of what, specifically, Hobby Lobby's religion is supposed to be. It's not Catholicism, but what is it? The document filed in U.S. District Court in Oklahoma City is fairly vague on this point. It says "evangelical," mentions "Jesus Christ" and "biblical," but does not specify a church, nor any authority the Obama administration could have consulted for case-specific clarification of the religion's position on moral issues relating to insurance coverage and birth control methods.

Moral issues which, judging just by the explanations offered by the Becket Fund for Religious Liberty lawyers, are complicated:

According to the suit, the arts and crafts store's specific religion is not opposed to birth control per se, but only to birth control that is "abortion causing." This means specifically birth control that prevents fertilized eggs from implanting in the uterus. Moreover, the company's religion not only prohibits those who adhere to the religion from themselves using such forms of birth control, but also, "forbid[s] them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices."

The breadth of "otherwise supporting" is obviously problematic. It's the kind of injunction with implications that would have to carefully explicated by a religion's ethicists and theologians.

But who are the authoritative experts of Hobby Lobby's religion?

According to the lawsuit, the unnamed religion defines the prohibition against "otherwise supporting" certain forms of birth control as meaning certain sorts of compensation packages that could potentially be used to fund birth control are not allowed, while other forms of compensation packages that have that same potential are not a problem. Why? It's not clear. The religion apparently requires believing companies (?) not to participate in or provide access to morning after pills or IUDs. The prohibition against "otherwise supporting" does not, however, extend so far as requiring a company not pay the salaries of people who could possibly use the money they've earned to pay for these forms of birth control. But it does require the company to not pay employees with insurance coverage that those employees could possibly use for morning after pills or IUDs.

The case is, as I read it, built on this explication of the requirements of the religion of Hobby Lobby.

Not providing insurance that covers certain birth control methods is defined in the suit as the "practice" of this religion, and thus protected by the "free exercise" clause of the First Amendment. The suit claims that the birth control mandate, by levying a fine on those businesses that fail to provide HHS-approved health insurances, is effectively fining those businesses that adhere to this religion of Hobby Lobby's for the practice of their religion. This is the main claim of the suit: "Having to pay fines for the privilege of practicing one's religion ... is alien to our American traditions of individual liberty, religious tolerance, and limited government. It is also illegal and unconstitutional." This is reiterated by the statement put out by Dan Green, the founder and CEO of Hobby Lobby, when the suit was filed. He said, “By being required to make a choice between sacrificing our faith or paying millions of dollars in fines, we essentially must choose which poison pill to swallow."

At least part of the argument in the case, then, has to be that this really is an exercise of a religion. 

And that argument would seem to require some specificity as to what religion this religion is that has these beliefs.

The closest the suit gets to naming a religion is naming a very broad religious tradition, i.e., "evangelical," and mentioning that the trust that runs Hobby Lobby is run by the Green family, and the family and trust have a statement of faith that has to be signed by trustees:

"By its own terms, the trust exists first and foremost 'to honor God with all that has been entrusted' to the Green family and to 'use the Green family assets to create, support, and leverage the efforts of Christian ministries.' The trustees must sign a Trust Commitment, which among other things requires them to affirm the Green family statement of faith."

This, then, becomes a key question of this suit. First, there's the question of whether a for-profit business can have a religion, in the sense entailed by the First Amendment's protection of religious practices. Second, specifically with this case, Hobby Lobby, Inc. vs. Sebillius, there's the question of whether a "religion," or, more, an "establishment of religion," can for legal purposes be a family's religion, where what the religion is and what it requires and entails are defined by a family.

This second question seems quite tricky: if it is the case that the Green family religion is a religion, fully protected by the First Amendment, is there a limit to what that family could define as its religion's required practice? Could the family in principle disregard any labor law or business regulation or tax requirement they chose on the grounds it violates a practice of the family religion?

If the Green family religion is not a religion, though, and not protected, then who or what authority determines the legitimacy of a religion for the purposes of First Amendment protection? And wouldn't that be problematic if the Constitutional protection is going to extend especially to those minor religions without the cultural capital necessary to accrue recognitions of legitimacy?

It's an important but also peculiar problem raised by this question of the religion of Hobby Lobby. What counts as a religion?  And what the definition of "religion" should be understood when we read that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"?

To me, at least, it doesn't seem clear that there's a worked-out answer to that.

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The political expediency of 'culture war'

It's useful to remember, when "culture war" fights reach a fevered pitch, that these conflicts and controversies are stoked and perpetuated in large part by people who don't really care. 

It's politics. And political expediency. 

There are those who do care, of course, and who really are deeply concerned about religious colleges and hospitals, for example, being required to offer birth control as part of their health care plans. But there are just as many or maybe even more who seize on such issues without any convictions except political gain. As much as Republican leaders shouted about "religious liberty," it was fundamentally political "points" that motivated them, not fear of religious exercise being curtailed by a Health and Human Services mandate. 

This is clear in how the issue has been handled after it passed from the headlines. 

As Politico reports:

"But now, with the rule set to take effect Wednesday — part of the 'Obamacare' law the GOP hates so much — the fiery repeal rhetoric has fizzled. In fact, few on Capitol Hill are saying anything about it at all.

"And that House vote to block the rule? Never happened — and isn’t in the works either. A group of die-hards on the issue asked for it again in a closed-door meeting [last] Wednesday with House leadership but said no promises were made.

"Even Rep. Jeff Fortenberry (R-Neb.), one of the most vocal critics of the rule and co-sponsor of a bill to eliminate it, has gone quiet now that the rule is about to kick in."

If one actually believed that this mandate is a violation of the free exercise of religion, this isn't how you'd respond. The actual actions of the representatives make it seem like this wasn't seen as a matter of defending the Constitution, but rather rhetoric and politics. The issue is a wedge, which might move some voters right, and motivate others to go to the polls.

There's no evidence, though, the Republican party as a party agrees with those suing the federal government over this birth control mandate that "after August 1, 2012, Plaintiffs will no longer have the right to make health care insurance decisions in line with their Catholic views," because on Wednesday the HHS rule "will go into effect and force Plaintiffs to pay, fund, contribute, or support artificial contraception, abortion, abortifacients or related education and counseling, in violation of their Constitutional rights and deeply held religious beliefs."

It's hard to see how the Republicans' very tactical response is anything other than a betrayal.

Not that there won't be congressmen and women across the country campaigning for re-election on the platform that something must be done on the issue they failed to do anything about.

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