What EEOC gets and HHS doesn’t

Posted by Kyle Duncan | Jun 13, 2013 | 0 Comments

The Greens are simply saying, “Leave us and our business out of this.” Not a difficult concept to grasp. What is puzzling is why the EEOC gets it, but HHS doesn't.

Two weeks ago, the EEOC sued a Peoria trucking company for violating the religious liberty of two of its Muslim drivers when it fired them after they asked not to haul alcohol in their trucks. The EEOC found the trucking company “could have readily avoided assigning these employees to alcohol delivery” but instead “chose to force the issue” and fire them. However the case comes out, the EEOC is right about one thing: the Muslim drivers have a genuine objection to being forced to transport alcohol, because it is an act forbidden by their faith. It is beside the point that the drivers are not being made, say, to drink alcohol themselves or to hand out drinks at a party. As the EEOC correctly recognizes, transporting alcohol is also a practice the drivers' religion forbids, every bit as much as taking a drink themselves.

Meanwhile, 600 miles away in Oklahoma City, another federal agency, HHS, has taken a narrower view of religious faith. HHS is arguing that a devout Christian family, the Greens, must use their family business,Hobby Lobby, to deliver a different product—emergency contraceptives—or face draconian fines. HHS fails to recognize that the Greens object, not only to using the drugs themselves, but also to providing them to employees through their health plan. The district court agreed with HHS, however: it found that the Greens'real objection was merely to contributing funds that “might, after a series of independent decisions by health care providers and patients covered by [Hobby Lobby's] plan, subsidize someone else's participation in an activity that is condemned by plaintiff's religion.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012). That decision is now before the en banc Tenth Circuit.

Imagine if the EEOC had taken the HHS mandate approach to the Muslim truck drivers. Instead of accepting their beliefs at face value, the EEOC could have said the drivers' real objection was merely to furnishing transportation services that “might, after a series of independent decisions” result in “someone else's participation in an activity that is condemned by [their] religion.” EEOC didn't take that position, of course, because it would have rewritten the drivers' beliefs. They object to their own coerced participation in delivering alcohol, not to whether other people drink it. They are simply saying, “Leave us and our trucks out of this.”

The Green family is saying the same thing. They object to the government forcing them and their businesses to deliver a specific product against their consciences. They are not trying to limit anyone else's freedom to use emergency contraceptives; they are simply saying, “Leave us and our business out of this.” Not a difficult concept to grasp. What is puzzling is why the EEOC gets it, but HHS doesn't. 

 This post originally appeared on The Becket Fund for Religious Liberty website, June 14, 2013.


About the Author

Kyle Duncan

Kyle Duncan offers clients two decades of experience litigating complex, high-stakes cases for government, businesses, institutions, and individuals. His victories in high-profile litigation have set landmark legal precedents and saved his clients millions of dollars. Education Columbia University (LL.M. '04) Louisiana State University (J.D. '97) Clerkship U.S. Fifth Circuit Court of Appeals ('98) Admissions U.S. Supreme Court U.S. Eleventh, Tenth, Sixth, Fifth, Fourth, D.C. Circuits ​District of Columbia, Louisiana, Texas


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