In an interview with the Christian Century, the Baptist Joint Committee’s Brent Walker discusses the state or religious liberty claims in light of the Supreme Court’s decision earlier this year in Hobby Lobby. There, the Court ruled that closely-held, for-profit corporations are eligible to make religious liberty claims, and that the contraception coverage mandate unlawfully placed a substantial burden on such corporations where the owners object on religious liberty grounds.
In this detailed interview, Walker discusses the state of corporate religious liberty claims, including objections to being required to participate in same-sex wedding services. He also addresses one of the key issues of Hobby Lobby, making the point directly: religious liberty claims are not always just about weighing the burdened party against the government. When others are impacted, their interest, he says, should be considered.
The contraception cases are striking in that third parties—those receiving insurance—are so closely involved. These cases seem to pit one person’s religious freedom against another’s freedom from religion. Is that a fair way to state it?
Yes, the effect on third parties must be part of the religious liberty calculus. Many religious liberty exemptions and accommodations will benefit the religious practitioner but have absolutely no effect at all on the rights or well-being of third parties. Those are easier cases. Where the rights and well-being of third parties are involved, the court must balance those rights in the equation.
Justice Kennedy in his concurring opinion was more attentive than the majority opinion to the need to protect the rights of third parties. After noting the importance of the accommodation of religion in our religiously plural culture, he stated firmly that the accommodation may not “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.”
For his answers about the religious liberty claims of wedding photographers, what makes a burden on religion “substantial,” and why he thinks “it is extremely unlikely that Justice Kennedy would go along with” ruling that the Obama Administration’s accommodation for religiously affiliated nonprofits is unconstitutional, read the whole thing.
For more BJC reaction to the Hobby Lobby decision, see columns from Walker and BJC General Counsel Holly Hollman here.