What do Hobby Lobby and Hosanna-Tabor have in common?

What do Hobby Lobby and Hosanna-Tabor have in common? 
The media won’t tell you.  Not even Conservative Talk Radio.  Or Fox News.  Or Matt Walsh.  Or the Political Commentators you call “friends” on Facebook.  So allow me. 

In 2012, the Supreme Court ruled 9-0 in the Hosanna-Tabor case that the Executive Branch of the Federal Government does not get to decide which organizations get to receive First Amendment “freedom of religion” protections and which do not. (The official court decision can be found here: http://www.supremecourt.gov/opinions/11pdf/10-553.pdf )

In this case, Hosanna-Tabor Evangelical Lutheran Church and School convinced all nine Supreme Court Justices that they had the freedom to determine which of their employees was a “minister of religion” (a designation given to “called” workers who have certain credentials, as opposed to “contracted” workers).  “Ministers of Religion” are entitled and burdened by taxes differently than your “typical” W2 employees (for example: they are obligated to pay both halves of their SSI and Medicare, but they can petition the IRS for an exemption; they can claim a housing allowance (under certain circumstances)).  And churches (and the schools attached to them) determine which employees are or are not “ministers of religion.”  

Until Hosanna-Tabor.  The short version is that the Executive Branch of the Federal Government told Hosanna-Tabor Evangelical Lutheran Church and School that their “ministers of religion” were not “ministers of religion” because they did not do enough “religion” in their jobs.  For example, teachers of history and English can be rostered “ministers of religion.”  The school argued that the Executive Branch of the Federal Government did not have the authority to tell the church how it should classify its employees under the protections granted to it under the First Amendment “Free Exercise” clause of the Constitution.  That the Supreme Court agreed with the Church-School 9-0 says something about the strength of their argument and the overreach of the Executive Branch of the Federal Government into the affairs of the establishment of religion. 

Fast Forward to Hobby Lobby. 

Repeat after me:  “Hobby Lobby isn’t about health care.”  Did you say it?  No?  OK.  But the offer’s on the table. 

Hobby Lobby is a “closely held corporation,” meaning that while it is technically a public company, its stock is not regularly publicly traded.  Ask a Wall-Street type what exactly this means.  The point is, they fall into a narrow category of business. Which may be helpful in coming to an understanding of the SCOTUS ruling in their favor.  Or not. 

Hobby Lobby was required by the Affordable Care Act (“Obamacare”) to provide health care insurance for its employees that would cover any number of “birth control” options.  One of those options was the “morning after pill.”  Hobby Lobby did not object to being forced to provide pre-conception birth control; it said that it had a religious objection to being forced to provide “services” (abortifacients) and that, as a closely held company, it had a right to protection from the Affordable Care Act under the Free Exercise clause of the First Amendment. 

The Executive Branch of the Federal Government, more or less, argued that closely held companies cannot appeal to the Free Exercise Clause of the First Amendment as a way to get around providing certain elements of “health care” as required by the ACA. 

This was the Executive Branch’s mistake.  The court had already ruled (in Hosanna-Tabor) that the Executive Branch was not the sole arbiter in deciding what is or is not a religion.  It should have anticipated that the court would rule the same in the Hobby Lobby Case as it did in Hosanna-Tabor. 

Therefore, a word of caution is in order for those who view the Hobby Lobby case as a “women’s rights” or “Obamacare” victory or loss (depending on your politics).  The careful wording of their decision should put to rest any claim that the SCOTUS is out to submarine or disrupt the ongoing implementation of the ACA. Rather, the Supreme Court once again prevented the Executive Branch of the Federal Government from asserting its claim that it is the supreme judge in deciding which entities “deserve” to be protected by the First Amendment’s Free Exercise clause.  And while it may sound silly to some that a corporation has a religion it can freely exercise, the reverse would be not a slow erosion but a landslide of Constitutional protections from government involvement in the lives and affairs of the electorate.  For if the Executive Branch can declare certain entities to be outside the protections of the First Amendment and others inside its protection, then the rights of the First Amendment necessarily become privileges; no longer are they rights given by the Creator to man, but privileges given by the hand of Government to recipients it deems worthy.

--Duncan McLellan