ObamaCare returns to federal appeals court to resume its battle against religious liberty, thanks to a Monday directive from the Supreme Court that revives the lawsuit brought by Liberty University, a Christian school in Virginia. The Liberty suit has essentially been put on ice while the Supreme Court dealt with the constitutionality of ObamaCare’s individual mandate. With that landmark 5-4 ruling behind us, and the entirely new concept of a shape-shifting “tax/penalty” added to Constitutional lore, it’s time for the courts to revisit some of the other places where the federal health-insurance takeover conflicts with our dwindling inventory of inalienable rights.
Liberty University’s suit ran afoul of the Anti-Injunction Act, which says that taxes cannot be legally challenged until they have been assessed. The tax/penalty pulled some of its remarkable shape-changing tricks to get ObamaCare itself around the Anti-Injunction Act, while allowing the dishonest proponents of the law (prominently including President Obama) to claim that it wasn’t really a tax. Those pretenses are no longer necessary, and the gigantic ObamaCare taxes are now being assessed, so Liberty University re-filed its suit, without objection from the Obama Administration.
This suit challenges both the notorious “individual mandate” and ObamaCare’s mandates upon employers from the standpoint of religious liberty. There’s a dash of equal-protection jurisprudence thrown in, since ObamaCare’s employer mandates essentially amount to special penalties (or are they taxes?) against businesses that commit the crime of growing too large. Once payroll grows beyond 50 employees, all hell breaks loose. If you’ve been paying attention to the post-election news, you’ve doubtless noticed that many small business owners are taking this as a powerful incentive to keep their full-time payrolls small, adding to the misery of job seekers.
But the main attraction will be the university’s First Amendment challenge to ObamaCare’s contraception mandates, which raise a very thorny issue. (In other words, it’s another Constitutional flaw that would have gotten ObamaCare laughed out of a sane Supreme Court long ago.) The law grants conscience waivers to explicitly religious institutions, such as houses of worship, but not to business enterprises run by devoutly religious people. In other words, Congress is making laws respecting the establishment of religion and prohibiting the free exercise thereof, which the First Amendment says is a bad thing, even before it gets around to saying that abridging the freedom of speech is bad.
To cite one of the more hair-raising bits of hair-splitting ObamaCare has forced courts to engage in, that means a company that publishes Bibles is religious enough to get a waiver, but not a company that sells Bibles. Perhaps enterprising businessmen will begin operating in-house Bible publication operations to secure waivers for their companies. Or maybe Liberty University’s case will make it all the way to the Supreme Court, and it will decide that ObamaCare’s will to power is not quite voracious enough to swallow the First Amendment, by giving a vast bureaucracy the power to decide which institutions have a religious conscience that must be respected, even though individuals do not.