Hobby Lobby Discriminates in the Name of Religion With Help from Orthodox Outliers

Court Case Pits 'Religious Liberty' Against Reproductive Rights


By Jay Michaelson

Published March 03, 2014, issue of March 07, 2014.
  • Print
  • Share Share

Next month, the Supreme Court will hear the most important abortion case in decades. Like the recent anti-gay law vetoed by Arizona Governor Jan Brewer, it turns on the meaning of the term “religious liberty.”

The case — actually a consolidation of two similar cases, Hobby Lobby v. Sebelius and Conestoga Wood v. Sebelius — comes in the wake of the Affordable Care Act, also known as Obamacare. Among the myriad provisions of the ACA, the Department of Health and Human Services required that corporations include coverage for contraception in the health plans they offer their employees.

Two corporations owned by religious individuals have sued, claiming — as did the proponents of Arizona’s anti-gay law — that their religious liberty is being violated. And surprisingly, a handful of Orthodox Jewish organizations are supporting them.

The story begins in 2003, when the Equal Employment Opportunity Commission held that failure to include contraceptive coverage in insurance policies violated the Pregnancy Discrimination Act. Ten years later, in implementing the ACA, HHS followed this precedent.

The response was hysteria. The Obama administration was declaring war on religion, conservatives cried.

In a compromise, organizations affiliated with a religious institution — such as Catholic universities, Catholic hospitals, Jewish nursing homes, and Mormon church-run businesses — were exempted from the requirements of the law. This barred hundreds of thousands of women from access to reproductive healthcare. Yet the “religious liberty” movement wanted more. They wanted corporations, too, to be exempted from the requirement, if those businesses’ owners professed a religious objection.
Hobby Lobby, the national crafts store that employs 21,000 people, and Conestoga Wood Specialties, a furniture company, were two such corporations. And so when the Obama administration refused this latest demand, they — or rather, the Catholic-funded nonprofits that represent them — sued, all the way to the Supreme Court.

No one doubts the sincerity of their owners’ religious beliefs, and their rights to practice their religion. But at issue in the court case is whether one person’s religious liberty trumps another person’s rights.

The answer — that no, it does not — is, in many respects, well established law. My liberty interest in saying the Lord’s Prayer at graduation does not allow me to compel a Jewish student to listen to it (Lee v. Weisman). My religious belief that the Bible demands racial segregation does not allow me to implement it at my nonprofit university (Bob Jones v. United States).

The overwhelming majority of American Jews recognize this — precisely because we have historically been a religious minority. Unsurprisingly, Jewish support for prohibiting such religious coercion has long been in the 80-90 percent range. And indeed,the vast majority of Jewish organizations, from the Anti-Defamation League to the National Council of Jewish Women, have taken leadership on the pro-liberty, pro-minority, pro-civil rights side of both the Hobby Lobby case and the question of religious refusals in general.

Yet the Hobby Lobby case finds the Orthodox Union, along with Agudath Israel, the Rabbinical Council of America, and other Orthodox organizations on the anti-choice, pro-coercion side of the issue. They have joined Hobby Lobby in claiming that a corporation providing insurance coverage is tantamount to the corporation’s owners providing contraception. And that a corporation may force its employees to obey their bosses’ religious dictates.

What motivates these Orthodox outliers?

In their amicus brief, they voice a concern that Orthodox-owned businesses might not be able to enforce modest-dress requirements. And they point out that under Jewish law, there is no distinction between an individual and a business that individual owns. (Apparently religious law should be taken into account by American courts, as long as it’s not sharia.)

But surely that is just the tip of the iceberg. These organizations are ideologically opposed to sexual liberation and its consequences, including birth control, abortion, and equality for LGBT people. And if that means utilizing state power to advance their moral agenda, so be it.

There may also be a more prosaic motivation: money. The same coalition fighting against women’s rights is also fighting for public funding of private schools — 95 percent of which are Christian, but 5 percent of which are yeshivas, day schools, and other predominantly Orthodox Jewish institutions.

Whatever their reasons, these Orthodox Jewish organizations are actively eroding the civil rights of all of us. And while they represent a minority of Jews, they provide ecumenical cover for conservatives desperately trying to maintain Christian hegemony in America.

We should not remain silent. As they did in Arizona, religious leaders concerned about this new campaign to permit religious coercion should speak out from their pulpits, sign petitions, and donate money to organizations they reflect the American Jewish consensus. Real religious liberty — the liberty to be free from religious coercion — is indeed at stake. This is both a Jewish value — elu v’elu divrei elohim chayim: multiple opinions may be sincere, correct, and even divinely inspired — and among our most precious civic ones: that one person’s religion ought never compel that of another.

Jay Michaelson is a contributing editor to the Forward.


The Jewish Daily Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, The Jewish Daily Forwardrequires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, our spam filter prevents most links and certain key words from being posted and The Jewish Daily Forward reserves the right to remove comments for any reason.





Find us on Facebook!
  • “This is a dangerous region, even for people who don’t live there and say, merely express the mildest of concern about the humanitarian tragedy of civilians who have nothing to do with the warring factions, only to catch a rash of *** (bleeped) from everyone who went to your bar mitzvah! Statute of limitations! Look, a $50 savings bond does not buy you a lifetime of criticism.”
  • That sound you hear? That's your childhood going up in smoke.
  • "My husband has been offered a terrific new job in a decent-sized Midwestern city. This is mostly great, except for the fact that we will have to leave our beloved NYC, where one can feel Jewish without trying very hard. He is half-Jewish and was raised with a fair amount of Judaism and respect for our tradition though ultimately he doesn’t feel Jewish in that Larry David sort of way like I do. So, he thinks I am nuts for hesitating to move to this new essentially Jew-less city. Oh, did I mention I am pregnant? Seesaw, this concern of mine is real, right? There is something to being surrounded by Jews, no? What should we do?"
  • "Orwell described the cliches of politics as 'packets of aspirin ready at the elbow.' Israel's 'right to defense' is a harder narcotic."
  • From Gene Simmons to Pink — Meet the Jews who rock:
  • The images, which have since been deleted, were captioned: “Israel is the last frontier of the free world."
  • As J Street backs Israel's operation in Gaza, does it risk losing grassroots support?
  • What Thomas Aquinas might say about #Hamas' tunnels:
  • The Jewish bachelorette has spoken.
  • "When it comes to Brenda Turtle, I ask you: What do you expect of a woman repressed all her life who suddenly finds herself free to explore? We can sit and pass judgment, especially when many of us just simply “got over” own sexual repression. But we are obliged to at least acknowledge that this problem is very, very real, and that complete gender segregation breeds sexual repression and unhealthy attitudes toward female sexuality."
  • "Everybody is proud of the resistance. No matter how many people, including myself, disapprove of or even hate Hamas and its ideology, every single person in Gaza is proud of the resistance." Part 2 of Walid Abuzaid's on-the-ground account of life in #Gaza:
  • After years in storage, Toronto’s iconic red-and-white "Sam the Record Man" sign, complete with spinning discs, will return to public view near its original downtown perch. The sign came to symbolize one of Canada’s most storied and successful Jewish family businesses.
  • Is $4,000 too much to ask for a non-member to be buried in a synagogue cemetery?
  • "Let’s not fall into the simplistic us/them dichotomy of 'we were just minding our business when they started firing rockets at us.' We were not just minding our business. We were building settlements, manning checkpoints, and filling jails." What do you think?
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.