As a rule, conflicts between church and state are extremely complex and often produce headaches, even among those who have years of experience working in such dangerous intellectual terrain. Frankly, I have no idea how general-assignment reporters can handle this stuff without the help of thick research folders and very experienced editors.
Today's New York Times article on the Hobby Lobby case is, in my opinion, a better than average effort when it comes to church-state coverage in the mainstream press. This is important because the Hobby Lobby case is quite strange, since it focuses on whether the leaders of for-profit corporations can argue that their institutions are protected by religious liberty. In other words, this is a "church-state conflict" -- I added the distancing quote marks -- that does not involve a church.
This report does, however, oversimplify one or two important pieces of the maddeningly complex HHS mandate story. I'll get to that shortly.
So what went right? I thought that the top of the piece was especially strong:
WASHINGTON -- Hobby Lobby, a chain of crafts stores, closes on Sundays, costing its owners millions but honoring their Christian faith.
The stores play religious music. Employees get free spiritual counseling. But they do not get free insurance coverage for some contraceptives, even though President Obama’s health care law requires it.
Hobby Lobby, a corporation, says that forcing it to provide the coverage would violate its religious beliefs. A federal appeals court agreed, and the Supreme Court is set to decide on Tuesday whether it will hear the Obama administration’s appeal from that decision or appeals from one of several related cases.
Legal experts say the court is all but certain to step in, setting the stage for another major decision on the constitutionality of the Affordable Care Act two years after a closely divided court sustained its requirement that most Americans obtain health insurance or pay a penalty.
So Hobby Lobby is clearly not a non-profit, religious voluntary association, like a Catholic school, an Orthodox Jewish clinic or a Pentecostal homeless shelter. So why is this case complex? Why is this even an issue?
This is where the Times report is quite strong. You see, there was that 2010 decision called Citizens United, the one the Obama White House detests so much because of its impact on campaign financing, the one that said corporations have free speech rights.
The question now is whether corporations also have the right to religious liberty. In ruling for Hobby Lobby, the United States Court of Appeals for the 10th Circuit said it had applied “the First Amendment logic of Citizens United.”
“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy M. Tymkovich wrote for the majority.
A dissenting member of the court, Chief Judge Mary Beck Briscoe, wrote that the majority’s approach was “nothing short of a radical revision of First Amendment law.”
But Judge Harris L. Hartz, in a concurrence, said the case was in some ways easier than Citizens United. “A corporation exercising religious beliefs is not corrupting anyone,” he wrote.
However, the religious owners of such a corporation may in fact be denying basic health care to their employees -- employees of a company that is ultimately seeking profits, rather than operating under the defining umbrella of a doctrinal mission statement.
Then again, Hobby Lobby is not your normal corporation, as the story notes, because founder David Green and his family control it through a privately held corporation. At this point, Hobby Lobby has "more than 500 stores and 13,000 employees of all sorts of faiths." It faces federal fines of $1.3 million a day if it fails to offer "comprehensive" health-care coverage, as defined under Obamacare.
So what is missing from this otherwise detailed and rather balanced report?
I thought the following section was a bit simplistic and failed to alert readers to other issues related to the HHS mandate, including cases that are much more directly rooted in traditional claims of religious liberty rights. Pay careful attention:
The administration has excluded many religious organizations from the law’s requirements; it has grandfathered some insurance plans that had not previously offered the coverage; and, under the health care law, small employers need not offer health coverage at all. In June, a federal judge in Tampa, Fla., estimated that a third of Americans are not subject to the requirement that their employers provide coverage for contraceptives.
But the administration drew a line at larger, for-profit, secular corporations.
“Congress has granted religious organizations alone the latitude to discriminate on the basis of religion in setting the terms and conditions of employment, including compensation,” the Justice Department told the 10th Circuit appeals court, in Denver.
The key word in that passage is "many," as in the statement that the Obama White House has "excluded many religious organizations from the law’s requirements." The implication -- an accurate one -- is that there are many religious organizations that have not been excluded from the law's requirements.
The Times story will lead most readers to assume that this is a conflict with two levels -- for-profit groups (status unknown) vs. non-profit religious organizations (already protected). The reality in the HHS mandate is more complex than that, drawing a line between religious groups that are protected by a freedom of "worship" and those that no longer enjoy a full protection in the name of religious liberty.
Here's how I stated the question in one of my "On Religion" columns:
When describing how his disciples should serve the needy, Jesus told a parable about a Good Samaritan who rescued a traveler who had been robbed and left for dead.
This businessman didn’t care that his act of kindness took place in public and that the injured man didn’t share his faith.
This raises an haunting question for those involved in the church-state struggles surrounding the Health and Human Services mandate requiring most religious institutions to offer their employees, and often students, health-insurance plans covering sterilizations and all FDA-approved contraceptives, including “morning-after pills.”
As Sister Mary Ann Walsh of the U.S. Conference of Catholic Bishops noted in an online memo: “HHS has such a narrow standard as to who operates a religious ministry, Jesus himself couldn’t pass muster.”
In other words, Jesus was urging his disciples to serve people -- even if they were of another faith.
What does that have to do with the HHS rules? Journalists really need to check the wording of the mandate. Religious non-profit employers seeking the exemption from the mandate must have the “inculcation of religious values” as their goal, they must primarily employ persons who share their “religious tenets” and primarily serve persons who share those same tenets.
What is the definition of "primarily"? What is the percentage required of those served?
In other words, if the Little Sisters of the Poor continue to serve needy non-Catholics as freely as they serve needy Catholics, then they may not be "religious enough" to be protected from the HHS requirements. The sisters need to start counting Catholic heads and non-Catholic heads, in case government officials decide to argue that their religious ministry is not religious enough to be considered protected worship.
The Hobby Lobby case is important and obviously deserved coverage. But it was wrong for the Times team to imply that this is merely a story about the rights of for-profit corporations vs. the rights of protected religious groups. At some point the high court will have to decide if it approves of the current administration's approach to dividing religious groups that worship with their own kind (protected) from the many religious groups that insist on serving everyone (not protected).
Attention journalists: This HHS legal war has three levels, not two.