The Naked Private Square

That’s the vision advanced by the Obama administration in their broadened—-but still much, much too narrow—-exemption to the HHS mandate.

According to the administration’s factsheet , an employer will be exempt if it:

1. opposes providing coverage for some or all of any contraceptive services required to be covered under Section 2713 of the PHS Act, on account of religious objections;


2. is organized and operates as a nonprofit entity;


3. holds itself out as a religious organization; and


4. self-certifies that it meets these criteria and specifies the contraceptive services for which it objects to providing coverage.

This expansion of the mandate is notable mostly for what it still leaves out, namely any for-profit employer—- like Hobby Lobby or Hercules Industries—-that opposes contraceptive and abortifacient drugs and wishes to operate its business accordingly.

The Obama administration believes that conscientious objections to contraception should prevail in the non-profit sector, but not in for-profit corporations. Why? Do employees of non-profits need contraception less? Do the conscience claims of their leaders matter more? Why are tax-exempt organizations granted more rights than those which pay taxes?

Hoftra University’s Ronald J. Colombo spoke to First Things about the administration’s new regulations: “The distinction between non-profit and for-profit is a convenient rule of thumb, but when it comes to constitutional matters such as freedom of religion it’s not appropriate.”

“There are for-profit corporations that are much more religious than non-profits,” he said.

Colombo has called this view “the Naked Private Square,” writing, “Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.”

There are other possible issues with this proposed accommodation. Given the administration’s previous dissembling, religious bodies are going to skeptically regard assurances that contraceptives will be “seamlessly” provided to employees of non-profits in a way that does not impinge on the consciences of employers. Say, though, that the administration’s claims are made in good faith: Why not provide the same “seamless” accommodation even to for-profit corporations?

There have been certain stirrings in the courts to remove this arbitrary distinction between for-profit and non-profit, which is why it’s a shame to see the Obama administration try to further enshrine it in our law. To the extent that the business of America is business, religion must be recognized as making final, non-negotiable claims—-in the market as much as anywhere else.