One of the most memorable moments of my newspaper life was meeting an American GI named Glenn M. Shumway. He was a religious Christian and a conscientious objector to war who served as a medic with the First Air Cavalry in the military region of Vietnam known as III Corps. When I interviewed him for the GI daily, Pacific Stars and Stripes, he’d just been lifted off the jungle floor 90 miles northeast of Saigon, where he’d been trapped, alone and surrounded by the enemy. “Not for a second,” he told me, did he wish he had a weapon.
“Ants were crawling over his hands, sweat was pouring off his brow and fogging his glasses, a helicopter was burning less than 10 yards away,” I wrote. “Bamboo on fire was going ‘pop, pop, pop,’ and the Baptist medic was ‘praying that Jesus Christ’s will be done.’” An officer had tried to get Shumway to take a weapon when he’d been inserted into combat, but he’d refused. He didn’t lack for patriotism. He didn’t lack for guts. He just didn’t believe in killing. Stars and Stripes ran the story under the headline: “Trapped Pacifist GI Sticks to His ‘Guns.’”
I found myself thinking of Shumway when the Supreme Court decided to hear the next big Obamacare case. That is the lawsuit in which the secretary of Health and Human Services, Kathleen Sebelius, is trying to force David Green and his family, the owners of Hobby Lobby Inc., to purchase for their employees insurance that covers the “morning after” pill, the use of which is prohibited by their religious beliefs. On the one hand, our government is prepared to accommodate the religious scruples of a man like Glenn Shumway. On the other hand, it is fighting David Green all the way to the Supreme Court.
What in God’s name is the difference? That is the question at the bottom of this astonishing case. I understand there are other points of view. Feature the New York Times, which has run out a dispatch by its former Supreme Court correspondent, Linda Greenhouse, a liberal sage who says the religious challenges to Obamacare’s contraceptive mandate are about sex. More broadly, she suggests they open a new front in the war on modernity. But at bottom this fight is about whether America is going to accommodate David Green.
The Greens contend that the United States Code requires it. In 1993 Congress enacted the Religious Freedom Restoration Act. RFRA is the soul of bipartisan comity. Among its sponsors was the Honorable Charles Schumer. It passed on a voice vote in the House and 97 to three in the Senate. It was inked by President Clinton. The idea was to deal with statutes of general applicability—zoning measures, say, or health care laws—that might cramp religion. Congress declared that “governments should not substantially burden religious exercise without compelling justification.”
The way the Left is carrying on, one would think the RFRA precipitated a new era of Salem witch trials. Greenhouse describes the statute as “tendentiously named.” Presumably this is because the inclusion of the word “restoration” suggests the free exercise of religious liberty needed to be restored at all. Congress disagreed with her. This was not about Christian hegemony. Congress acted after the Supreme Court permitted Oregon to deny unemployment benefits to Native Americans who’d been fired from state jobs after testing positive for the peyote they used in religious rituals.
It’s a conceit of the left that the current contretemps is about the religious rights of corporations. Certainly Hobby Lobby Inc. is one of the named respondents in the case. So, however, are Hobby Lobby’s owners. David Green, Barbara Green, Steve Green, Mart Green, and Darsee Lett are, according to documents filed with the Supreme Court, “individual persons.” Could it be that our civilian society is less tolerant of religious sensibilities than the Lean Green Fighting Machine, as the supposed lugnuts of the Army used to be called?
The government draws a distinction between businesses such as Hobby Lobby and religious corporations like churches and charities. It takes what the Greens’ lawyers called the “unprecedented position” that “commercial businesses and their owners—simply because they make profits—cannot exercise religion under the Constitution or federal law.” The Green family, which is given to politeness, characterizes that view of the scope of religious exercise as “miserly.”
Lawyers for the Greens quote one of the most trans-liberal justices, Ruth Bader Ginsburg. She disagreed when the court limited the basis of Obamacare to the government’s taxing power. Even so, she seemed to recognize that there might be limits to how the law could be applied to religious persons. “A mandate to purchase a particular product,” she wrote, “would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.”
It’s going to be illuminating to see how she and the other eight justices deal with the Greens. Not that they’re the only religious persons before the court because of Obamacare. The Nine have also agreed to hear, alongside Hobby Lobby, the appeal of Conestoga Wood Specialties Corp, which makes cabinet doors. Its owners—Norman and Elizabeth Hahn and their three sons—are Mennonites, a sect of pacifist Christians.
Mr. and Mrs. Hahn and their sons say in their petition to the Supreme Court that they “object as a matter of conscience to facilitating contraception that may prevent the implantation of a human embryo in the womb.” In contrast to the Greens, whose position was upheld by the riders of the Tenth Circuit, the Hanh family lost their case before the judges of the Third Circuit. This conflict between the circuits helped advance the issue to the Supreme Court.
There is going to be a lot of argument before the high bench in these two cases. The American Jewish Committee—which has, in Marc Stern, a particularly savvy religious freedom lawyer—has filed a brief that doesn’t take sides but says the lower courts need to clarify what, if anything, the government’s claimed “compelling interest” is in the contraceptive mandate before the matter is ready for the Nine.
For my part, I wish the courts were in a position to call as a witness Menno Simons himself. He was the 16th-century sage whose followers are called Mennonites. He was a Catholic priest who began searching scripture when he heard that a man named Sicke Freerks Snijder had been beheaded in the Dutch province of Friesland for being re-baptized. Eventually Menno Simons threw in with the Anabaptists, who do not accept baptism of infants and require their members to be re-baptized—or as they see it, baptized for the first time—when they are able to make their own confessions of faith.
How, at the start of the 21st century, can it be that the followers of Menno Simons are having to go to the Supreme Court to be able to freely practice their religion here in America? How can it be that they forfeit such a right by acting through a corporation, when opposition to their cause is being nursed by, among others, a family that, in the Sulzbergers, is acting through its own corporation and under protection of the same First Amendment under which the Green and Hahn families seek shelter?
The Green and Hahn families are archetypes of religious factions—Christians, Jews, and many others—who flocked to America in search of religious liberty. In the centuries since Menno Simons died, his followers have dispersed all over Europe and the world in search of the kind of liberty we have had here. They have the virtue, like all truth-seekers, of being a stiff-necked band. Are they going to have to pick up and move again? Is that what the Supreme Court is going to decide the Constitution requires? Is the Court going to rescue them the way the Army once rescued Glenn Shumway? Or is it going to abandon them on the jungle floor while, in a blaze of secular zeal, the bamboo all around is on fire, going “pop, pop, pop”?
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