This may be the year our First Amendment sees its most serious threat.
The Affordable Care Act now requires big employers to provide birth control as part of health insurance coverage, irrespective of the employers’ religious beliefs on the matter.
Many have religious beliefs that consider either contraception or the morning-after pill morally wrong and abhorrent to the conscience. The government is nonetheless ordering them to arrange for it and, in many cases, even subsidize it.
Hobby Lobby has famously challenged the mandate in an ongoing lawsuit. But it wasn’t until New Year’s Eve that the U.S. Supreme Court took action to temporarily block that portion of the law.
Remarkably it was liberal Justice Sonia Sotomayor who issued the stay – though, notably, only until Friday, when the Obama administration was ordered to make its case for the mandate.
She appears to have had little choice but to issue the emergency order. And, indeed, given an opportunity to protect Hobby Lobby with a similar reprieve in December 2012, Sotomayor passed on it.
A vital tenet of religious freedom is at stake. Can the government force Americans to participate in activities that are of the highest moral repugnance to them and their religious views?
And if it can, what freedom is truly left?
The current case, involving the Little Sisters of the Poor Home for the Aged in Denver, provides a stark background for the question. How can nuns be ordered to provide birth control in a free country?
But truly, the impact of this debate is sweeping. Dozens of lawsuits have been filed by the intrepid, and many more thousands of Americans not directly involved in the legal cases will have their rights either affirmed or trimmed.
The politics of the mandate are quite interesting, too – that is to say, hypocritical. Those of the same political ideology that once bitterly protected conscientious objectors during the Vietnam War would now deny the same right to conservatives who object to tampering with (and ending) embryonic life.
It also puts the religious between a rock and a hard place: Which one are they to obey, man’s law or God’s?
Those folks are normally assiduously law-abiding. But unless the court steps in to protect their fundamental religious rights on a more permanent basis, they may be tempted to resort to “nullification” – the act of singularly nullifying laws they find unlivable.
How many people, for instance, will ignore the requirement to buy insurance?
If so, they’ll have company in high places. As we noted in an editorial nearly a year ago, the Democratic-led U.S. Senate ignored its duty to pass a budget for the entire first Obama term, and the Obama administration has unilaterally and openly ignored provisions of immigration law, the Defense of Marriage Act, drug laws and more – and even encouraged defense contractors to ignore laws requiring layoff notices in advance of “sequestration” cuts.
“Nullification has rarely seen this much favor since the Civil War,” we wrote last January, “and may only gain steam if Washington continues down the path of trying to run everyone’s lives.”
Unless the courts step in, that may only be truer this year than last.