JFK v. Hobby Lobby

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John F. Kennedy addressing the Houston ministers


John F. Kennedy addressing the Houston ministers

John F. Kennedy addressing the Houston ministers

John F. Kennedy addressing the Houston ministers

Amid the outpouring of remembrance and assessment marking the 50th anniversary of John F. Kennedy’s assassination, there has been a notable lack of attention to the significance of his presidency for religion in public life.

When it comes to religion, Kennedy is best remembered for his speech to the Greater Houston Ministerial Association, a Protestant lion’s den that the presidential candidate from Massachusetts entered in hopes of allaying fears of a Catholic in the White House. Most famously, he declared:

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

This set the stage for what happened after Kennedy was elected. His Justice Department (and Department of Health, Education and Welfare) did take the position that the Constitution barred funding of parochial schools, at least below the college level. In the most symbolically important Establishment Clause decisions of the century, the Supreme Court barred prayer and Bible reading in the public schools.

Such exclusions of state sponsorship of religion, much criticized in later years as creating a “naked public square,” were accompanied by greater recognition of individuals’ right to be exempt from what they considered intrusions on their religious liberty. Thus, in Torcaso v. Watkins (1961), the Court unanimously threw out Maryland’s requirement that state officials declare a belief in the existence of God. And in Sherbert v. Verner (1963), the justices decided that a South Carolina woman fired for refusing to work on her Sabbath (Saturday) was entitled to unemployment compensation.

It is hardly paradoxical that enhanced individual religious rights should have accompanied a more secular public religious regime. As the Danbury Baptists recognized in Jefferson’s day, state support of religion in a republic like ours is equivalent to compelled support of religion on the part of individual citizens.

Over the past quarter-century, the Kennedy legacy has been overturned. Religious establishments, including public funding of parochial schools through vouchers and tax credits, have been declared permissible. At the same time, Employment Division v. Smith (1990) denied a free exercise right to obtain exemptions from neutral laws of general applicability. Altogether, the power of the individual conscience in the public square has been weakened.

Today, the Supreme Court will decide if it will decide whether a for-profit corporation enjoys the protection of the Free Exercise clause. The experts believe that the Court will go ahead and take the case, in which Hobby Lobby, the privately held toy store chain, claims it is entitled to an exception from Obamacare’s contraception mandate.

Should that happen, the decision could well go in favor of Hobby Lobby; for having determined in Citizens United (2010) that corporations have the same speech rights as individuals, why wouldn’t the Court find that they have the same religious ones? A finding in Hobby Lobby’s favor would unquestionably strengthen the Free Exercise Clause, but in a way that establishes the ability of any private employer to impose religious rules on the individuals who work for them.

It would be hard to see that as a victory for religious liberty.

Update: And they’ve taken it.