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The Courts and the HHS Mandate: Whence Comes Our Deliverance?

On the Friday before Thanksgiving, a federal district court judge in Chicago issued a preliminary injunction requested by the religious publisher Tyndale House in its challenge to the mandate. HHS has denied Tyndale House’s request for an exemption, saying that it didn’t meet the government’s definition of a “religious employer” because it operates as a “for-profit” business.

It didn’t matter that Tyndale House is owned by a non-profit foundation whose purposes are explicitly religious, and that 100 percent of its profits are given away.

In granting the injunction, Judge Reggie Walton acknowledged that the government has a “compelling interest” in promoting public health. However, in his estimation, the government failed to prove that the mandate furthered those compelling interests.

But while Tyndale House won an important victory, at the same time the owners of Hobby Lobby, an arts and crafts store chain, were losing their challenge to the HHS mandate in Oklahoma City. Like other challengers, they said that paying for such coverage violated their religious beliefs.

In denying their request for an junction, Judge Joe Heaton, a Bush appointee, said that while he was “not unsympathetic” to their concerns, there was no legal precedent for their request.

He wrote that “plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby ... have a constitutional right to the free exercise of religion.”

While the results may seem to be contradictory, that’s only because the debate over the HHS mandate and religious freedom has usually treated all religious freedom claims as more or less identical, when, in American law, that definitely isn’t the case.

In First Amendment jurisprudence, it makes a big difference whether you are an explicitly religious organization or not. It also matters a great deal if we’re talking about institutions or individuals.

Historically, the courts have frowned upon the government interfering with the operation of religious institutions. Earlier this year, the Supreme Court unanimously overturned the Equal Employment Opportunity Commission’s involvement in a dispute involving a teacher who was fired by a Lutheran school. The Court rejected the EEOC’s claim that a fired teacher couldn’t be a “minister” and affirmed that the church, and not the government, got to make such determinations.

Something similar is at work in Tyndale House’s challenge and those made by religious non-profits. HHS has taken upon itself to define “ministry” and “mission.” There’s a good chance that the court will slap HHS’s hand just as hard as it did the EEOC’s.

In contrast, it’s a long-established principle that there is no right to an individual, religiously-based exemption to laws that apply to everyone equally. In Reynolds v. United States, decided in 1878, the court rejected a Mormon’s religious right to polygamy saying that to do otherwise would “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Thus, for businesses like Hobby Lobby, fighting the HHS mandate in the courts will be an uphill battle, to say the least. That’s why we must wage the battle for religious freedom on the airwaves, in the court of public opinion, and in the halls of Congress.

Won’t you please join us in doing that? Write or call your congressman and senators and let them know you oppose the HHS mandate.

And for more information on the HHS mandate and other related issues, please visit manhattandeclaration.org, sign up to get our regular emails, and please sign the Manhattan Declaration.

Eric Metaxas is a co-host of BreakPoint Radio and a best-selling author whose biographies, children's books, and popular apologetics have been translated into more than a dozen languages.

BreakPoint commentary airs each weekday on more than one thousand outlets with an estimated listening audience of one million people. BreakPoint provides a Christian perspective on today's news and trends via radio, interactive media, and print.

Publication date: November 28, 2012

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