People who support Hobby Lobby's choice to withhold contraceptive healthcare coverage from their employees rally outside the U.S. Supreme Court on March 25. Photographer: Brendan Smialowski/AFP/Getty Images
People who support Hobby Lobby's choice to withhold contraceptive healthcare coverage from their employees rally outside the U.S. Supreme Court on March 25. Photographer: Brendan Smialowski/AFP/Getty Images

Should the government be able to force a kosher deli to carry non-kosher goods if it has incorporated itself? Would that deli get no protection from the Religious Freedom Restoration Act?

That's the logical implication of the position a lot of liberals are taking in a case being argued before the Supreme Court today, in which Hobby Lobby Stores Inc. is seeking a religious exemption to a regulation President Barack Obama's administration wants to impose requiring most employers to pay for birth control, including drugs that may cause abortion.

True, it's just a hypothetical scenario (one I have borrowed from Ed Whelan, the president of the Ethics and Public Policy Center, a conservative think tank). But hypothetical scenarios are doing a good deal of the work in the liberal case.

In today's Washington Post, activist Sandra Fluke writes: "Corporations are not people. Corporations cannot have religious views. If religious rights are extended to corporations, it puts us on a slippery slope where any private company could argue that religious beliefs prevent it from offering vital employee protections."

Where does that slippery slope lead? "Depending on the exact ruling, any for-profit corporation could cut off its employees' insurance coverage for blood transfusions, vaccinations or HIV treatment -- all of which some Americans have religious objections to. Any critical health coverage the boss doesn't agree with could be eliminated."

For most of American history, it has been unquestionably legal for employers to refuse to offer health coverage for these things for religious reasons, and yet somehow nobody ever cites an actual case in which it happened.

Moreover, Hobby Lobby isn't arguing that any religious objection should defeat any regulation: It's arguing that the particular regulation the Obama administration is trying to impose is not the least restrictive means of serving a compelling governmental interest. That’s part of the test established by the Religious Freedom Restoration Act. The facts in a blood-transfusion case would be different than the facts in today's case -- and worse for the objectors, which is why Fluke brings it up -- and courts could and would take that difference into account.

Fluke concludes her op-ed thus: "We must fight back and speak out, and hope the Supreme Court rules in favor of the people."

For this she went to Georgetown Law?

To contact the author of this column: Ramesh Ponnuru at rponnuru@bloomberg.net.

To contact the editor responsible for this column: Timothy Lavin at tlavin1@bloomberg.net.