June 14, 2013

What EEOC gets and HHS doesn’t

Image: What EEOC gets and HHS doesn’t

The Greens are simply saying, “Leave us and our business out of this.” Not a difficult concept to grasp. What is puzzling is why the EEOC gets it, but HHS doesn’t.

By Kyle Duncan

Two weeks ago, the EEOC sued a Peoria trucking company for violating the religious liberty of two of its Muslim drivers when it fired them after they asked not to haul alcohol in their trucks. The EEOC found the trucking company “could have readily avoided assigning these employees to alcohol delivery” but instead “chose to force the issue” and fire them. However the case comes out, the EEOC is right about one thing: the Muslim drivers have a genuine objection to being forced to transport alcohol, because it is an act forbidden by their faith. It is beside the point that the drivers are not being made, say, to drink alcohol themselves or to hand out drinks at a party. As the EEOC correctly recognizes, transporting alcohol is also a practice the drivers’ religion forbids, every bit as much as taking a drink themselves.

Meanwhile, 600 miles away in Oklahoma City, another federal agency, HHS, has taken a narrower view of religious faith. HHS is arguing that a devout Christian family, the Greens, must use their family business, Hobby Lobby, to deliver a different product—emergency contraceptives—or face draconian fines. HHS fails to recognize that the Greens object, not only to using the drugs themselves, but also to providing them to employees through their health plan. The district court agreed with HHS, however: it found that the Greens’ real objection was merely to contributing funds that “might, after a series of independent decisions by health care providers and patients covered by [Hobby Lobby’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff’s religion.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012). That decision is now before the en banc Tenth Circuit.

Imagine if the EEOC had taken the HHS mandate approach to the Muslim truck drivers. Instead of accepting their beliefs at face value, the EEOC could have said the drivers’ real objection was merely to furnishing transportation services that “might, after a series of independent decisions” result in “someone else’s participation in an activity that is condemned by [their] religion.” EEOC didn’t take that position, of course, because it would have rewritten the drivers’ beliefs. They object to their own coerced participation in delivering alcohol, not to whether other people drink it. They are simply saying, “Leave us and our trucks out of this.”

The Green family is saying the same thing. They object to the government forcing them and their businesses to deliver a specific product against their consciences. They are not trying to limit anyone else’s freedom to use emergency contraceptives; they are simply saying, “Leave us and our business out of this.” Not a difficult concept to grasp. What is puzzling is why the EEOC gets it, but HHS doesn’t.

Kyle Duncan is General Counsel for The Becket Fund for Religious Liberty.

  • http://www.jwjeffery.com/ Joshua Jeffery

    I don’t think it is puzzling at all. The EEOC is protecting individual employees who are being forced to do something they feel is immoral.

    HHS, however, is forcing a large corporation, an employer, to comply with a statute that requires that all employees be provided with a health care plan to provide a full range of women’s health options. Hobby Lobby isn’t an individual. It is a corporation. Corporations aren’t religious. The shareholders of Hobby Lobby may be religious, but the corporation is just that, a company.

    The situations are wholly different. In one case, individuals are being threatened with their livelihood by a private party for notifying their employer that they do not wish to violate their conscience. In the other, a corporation is being threatened with a fine for refusing to comply with federal law.

    This is a case of apples and oranges.