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Law, Not Theology By: Kyle Duncan, General Counsel at The Becket Fund for Religious Liberty

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By: Kyle Duncan, General Counsel at The Becket Fund for Religious Liberty

The American legal system doesn’t do theology. Thank heavens. No one wants judges telling us whether the Nicene Creed is correct, whether the Red Sea really parted, or whether reincarnation happens. Yes, religious believers sometimes go to court when their rights are violated, but they typically argue that theology is none of the government’s business. And the government almost always agrees.

Strange, then, that the Department of Justice recently went out of its way to inject theology into a nationwide religious liberty dispute. Conestoga Wood Specialties is one of over thirty challenges by business owners to the HHS mandate, a regulation requiring health insurance to cover contraception and sterilization. During oral argument last May, Circuit Judge Kent Jordan stressed that the Conestoga plaintiffs object only to covering specific “abortifacient” drugs and devices, triggering this exchange with the DOJ attorney (italics mine):

DOJ: If I may just interrupt with… abortifacients… just to make clear… the Court is using a theological term. If the Court wants to refer to IUDs and Plan B and Ella, that’s [sic] neutral terms. For federal law purposes, a device that prevents a fertilized egg from implanting in the uterus is not an abortifacient. Abortifacient would be a drug like RU-486, that has an effect only after the woman is pregnant. So if, if the court wants a neutral description, we’re talking about drugs and devices that could prevent a fertilized egg from implanting in the uterus.

JORDAN: I’m not, I’m not sure… I’m not sure where you’re…

DOJ: I’m just urging the Court not to adopt theological terminology in trying to operate…

JORDAN: How is that theological? I thought that was… I thought, having read the amicus briefs, several of them in this case, that that was an accepted scientific term. But if that’s troubling to you, we’ll call it “Ella,” okay?

DOJ: That’s fine. Or an IUD, about which there’s actually more evidence.

JORDAN: Let’s just say “Ella” for purposes of discussion. Okay…

This was a remarkable moment for three reasons.

First, “abortifacient” is obviously not a theological term. Rather, as Judge Jordan’s voluminous dissent explains, it is a “scientific medical term” which the McGraw-Hill Dictionary of Scientific and Medical Terms defines as “[a]ny agent that induces an abortion.” Divine revelation is not necessary to grasp what the word means.

Second, disagreement over whether the mandated drugs cause “abortion” turns, not on theology, but on a far more arcane discipline: federal regulatory terminology. Federal regulation defines “pregnancy” as beginning at “implantation” and not conception, allowing the government to say that the mandated drugs do not cause abortions “within the meaning of federal law.” But these semantics are irrelevant to the Conestoga plaintiffs’ claims, which center on the fact that Plan B, Ella, and certain IUDs—all included in the mandate—can destroy an embryo by preventing it from implanting in the womb. DOJ has already conceded this fact in multiple HHS cases, which is why the en banc Tenth Circuit, addressing the same question in its Hobby Lobby decision, held that “there is no material dispute” about it.

Third, while there’s nothing theological about the term “abortifacient,” the government’s own defense of the mandate is, ironically, saturated with theology. Its basic position is that a profit-making entity cannot exercise religion. That is theology, not law. As Judge Jordan’s Conestoga dissent put it, the government’s position:

appears to be itself a species of religion, based on the idea that seeking after filthy lucre is sin enough to deprive one of constitutional protection, and taking the theological position that human beings should worship God on Sundays or some other chosen day and go about their business without reference to God the rest of the time.

(internal quotes omitted). In Hobby Lobby, the Tenth Circuit (which expressly disagreed with the Third Circuit on whether commercial businesses can exercise religion) made a similar point. Judge Tim Tymkovich wrote for a five-judge majority that “[a] religious individual may enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values. As a court we do not see how we can distinguish this form of evangelism from any other.” Indeed, a civil court cannot make such distinctions because they would be inherently theological.

Which brings us back to the beginning: American courts don’t do theology. They do law, and the HHS business cases present a maze of legal issues. Does the way a business is organized somehow determine whether it can exercise religion? If a sole proprietor can exercise religion, why can’t a partnership? An LLP? An LLC? An S-Corp? Does it matter whether the business is structured as a non-profit or a for-profit? If a business can’t exercise religion in its own right, can its owners? These questions have already provoked a clear split between the Third and Tenth Circuits, and the disagreement will quickly deepen with decisions expected soon from the Sixth and Seventh Circuits. The stage appears set for Supreme Court review. Let us give thanks that these questions are merely legal ones, because law is hard enough.