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The New Wall and Old Liberties

Berlin WallIn 1947, the Supreme Court changed the American landscape with a single phrase – “wall of separation between Church and State.” Those words were borrowed from a letter from Thomas Jefferson to a Baptist association, and then in the years that followed, it was misapplied by the Court, erecting a kind of Berlin Wall of hostility against various public exercises of faith.

Last week, a federal Court of Appeals for the 3rd Circuit erected another “wall of separation.” This one is equally hostile: a wall of separation between faith and free enterprise. Apparently ignoring the rich legacy of liberty in the historic city in which that court sits – Philadelphia – two of the three judges on the panel ruled that family-owned, for-profit companies have no rights of religious freedom. The case involved Conestoga Wood Specialties Corp., which makes cabinets and is run by five members of the Hahn family, who are Mennonites and who oppose abortion. The company sued on religious grounds in an attempt to be exempted from the new federal HHS health insurance mandate that requires it to maintain coverage for abortion-inducing drugs for its 950 employees. But on July 31, the Court of Appeals ruled that neither the for-profit  company nor its owners have any religious standing to object under either the First Amendment or under a religious liberty statute passed by Congress.

This decision clashes with the opposite result from a special panel of eight judges in the 10th Circuit Court of Appeals in Colorado. In that case, five of the judges ruled that Hobby Lobby, a faith-based commercial business, could pursue its religious rights to be exempted. This now sets the stage for a likely decision by the Supreme Court soon on whether faith-based for-profit companies have any religious rights, or whether only non-profit religious groups and individuals can claim First Amendment protection for their faith. The implications of this issue go far beyond objections over the abortion implications of the HHS mandate. In the wake of the harsh criticism specifically leveled against supporters of “Judeo-Christian morality” by a slim five-justice Supreme Court when they recently struck down a portion of the Defense of Marriage Act (DOMA), we can expect new formulations of “anti-discrimination” laws protecting “sexual orientation” to be proposed. Some have already appeared. If the 3rd Circuit ruling holds sway, Christian businesses everywhere will soon have to choose between Bible-informed conscience and government compliance.

And if you doubt the extent of this approaching religious liberty collision, just google the phrase “Christian business” and see the long list of organizations devoted to the concept that there should be no “wall of separation” between biblical faith and free enterprise. NRB’s own membership is filled with similar examples of Gospel-oriented, for-profit enterprises that engage in the communication of biblical truth: Christian publishing companies, consulting agencies, commercial broadcasters, and media companies, just to name a few. Beyond that, our nation is filled with Christian-based counseling centers and health-care facilities, Christian book stores, Christian relationship services, and even companies that provide listings of Christian businesses that apply Biblical business principles. The New York Times had to admit in an August 2 article, the variety of national Christian-based business that overtly apply biblical business practices, naming In-N-Out Burger, Chick-fil-A, Covenant Transport trucking company, and the clothing store Forever 21.

Let’s hope and pray that when the Supreme Court deals with this issue, it brushes off the history books. In 1788, after James Madison helped to construct the language of the U.S. Constitution, he returned to Virginia as a delegate to that state’s Constitution Ratification Convention. When objectors raised questions about the protection of religious freedom, Madison was adamant on the subject: “There is not a shadow of right in the general (national) government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.”

Amen to that.

By Craig Parshall
Senior Vice President & General Counsel, National Religious Broadcasters
Director, John Milton Project for Free Speech     

Click here to read more articles written by Craig Parshall.

Published: August 8, 2013

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