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Wheaton College and the Hobby Lobby decision

Religious freedom supporters rally in support of Supreme Court Hobby Lobby decision
Religious freedom supporters rally in support of Supreme Court Hobby Lobby decision
Photo by Scott Olson/Getty Images

The ink was barely dry on the Hobby Lobby decision (discussed last week) when the Supreme Court issued an injunction in connection with a lower court case on a very similar issue, Wheaton College v. Sylvia Burwell 573 U.S. _____ (2014). Despite the assertion of the rather vehement dissent of Justice Sotomayer, this decision is perfectly consistent with the other, appearances to the contrary.

The logic in the Hobby Lobby case, in its essential part, went something like this: certain birth control measures (as we noted, not all) for which coverage is required under the regulations of the Affordable Care Act work by preventing implantation and thus destroying a conceived human life. Because of their religious beliefs, Hobby Lobby's owners believe that paying health care premiums that in turn fund such measures makes them morally accessories to murder. It would be something like, by analogy, buying a gun for someone who intends to use it to kill someone. The connection is not entirely direct, but it is direct enough: the employer gives money to the insurer so that the insurer will give money to the medical service provider who in turn kills the unborn child. The hit was ordered by the employee, but the bill was delivered ultimately to the employer.

The court noted in that decision that Health and Human Services had already provided an alternative method for religious non-profit organizations by which they could file notice of their religious objections and be excused from the responsibility to provide such coverage; that system then arranges for the same coverage to be provided at someone else's expense. This then, in the court's view, relieves the employer of any connection to the objectionable act while still enabling the employee to obtain it. The court decided nothing beyond that (and Hobby Lobby did not openly agree that this was acceptable).

Wheaton College is recognized as a religious school, and it has filed suit in a similar matter. Of course, Wheaton qualifies as exactly the sort of organization already covered by the system the court recommended could be extended to cover Hobby Lobby--but it files an objection to that system. It asserts that it should not be required to file the paper which authorizes someone else to pay for those services, because in doing so it is complicit in making those services available, against its religious beliefs. To extend our analogy, Wheaton has not been asked to buy the gun, but it has been asked to fill out a reference endorsing the purchaser while knowing that the gun might be used to commit a murder. They want to be excused from that, to have nothing whatever to do with making it possible for anyone to obtain the objectionable medical services.

At the Supreme Court level, we do not know to which services Wheaton objects. What we know is that under the law failure either to fill out the form or provide the coverage results in substantial fines. Wheaton reasonably believes that it ought to be shielded from paying any of those fines until the courts have determined whether the requirement that it file the proper form to enable an alternate means of covering the service to which it objects is an impingement on its religious rights. One assumes that once the case is decided and the appeals process run to the end, Wheaton will either be excused, or be forced to comply with the filing of the form or pay the fines from that point forward; it objects to having to pay the fines for not complying with a law which might not be enforceable against it, at least until it is clear whether or not it is.

Justice Sotomayer is certainly right that it is a rather extreme situation for the Supreme Court to issue an injunction preventing enforcement of a law while the courts are deciding the matter. However, Wheaton asked for the injunction from the lower courts precisely because while it pursues its appeals process it believes it ought to be shielded from penalties--if the law might not be enforceable against them, they deserve the benefit of the doubt until that is clear. It is a case in which the lower court ought to have granted a stay of its decision pending appeal, and rather arrogantly declined to do so, apparently because in its opinion Wheaton could not prevail in the case. In short, a Federal District Court judge gave an opinion on a case, then when the losing party asked to have the enforcement of the judgment delayed pending appeal the same judge said that since he knew he was right he was not going to do that. The Appeals Court then also declined to grant a stay--but this was done before the Hobby Lobby decision gave support to the argument that actions an employer perceives as enabling an employee to commit a moral wrong cannot be forced on that employer as long as an alternative exists to protect the government's interest in the matter. That means that in the Wheaton case, before Wheaton can be forced to pay fines it has to be determined--under the reasoning in Hobby Lobby--whether there is a way to meet the government's interest in providing such coverage to Wheaton employees (and students) that is less of a burden on the religious beliefs of the college. Maybe there is not, but that is the point of the lawsuit.

In the interest of disclosure, I have no direct connection with Wheaton College, but I know it to be (or at some point to have been) a member of the Christian College Consortium, of which my alma mater (Gordon College) was also a member. I also know that such schools frequently have mandatory statements of faith for the faculty and principle employees, and codes of conduct to which students must agree. I do not know the content of Wheaton's requirements for employees or students, but am certain that there are morals clauses. While it sounds harsh, it does seem that any employee who objects to Wheaton's principles should work elsewhere, and any student who similarly objects probably is at the wrong school. This is probably not a case of a small executive group imposing its will on a larger group, but of a general consensus of like-minded individuals associated with each other through the school the majority of whom, at least, agree with the objection to such coverage. Health and Human Services of course thinks it mandatory that such contraceptive coverage be made available even for nuns, as necessities of women's health care. Nuns generally do not agree with that, or perceive it as a benefit they will use. It may be that there are students at Wheaton who are not acting in accordance with the rules, but there is a degree to which that means they are accepting the risks of their contracts.

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