By Fr. George Welzbacher
February 26, 2012
In view of the fact that the U. S. Supreme Court has seen fit unanimously, 9-0, to repudiate as a flagrant violation of the First Amendment President Obama's recent effort to compel Hosanna-Tabor Lutheran Church and School to rehire a former employee whom the directors had chosen not to rehire, it would seem to be a pretty safe bet that the Court will reject, as an even more egregious violation, Mr. Obama's recent dictate that every religious institution serving the general public MUST offer its employees even those health "benefits" whose provision stands in conflict with the basic principles of the institution's creed. Until such time as the courts may rule, the Obama decree will be enforced, as of August 1st, though such provision in most cases will now be a little less direct. Much time and money will be wasted as the issue works its way upward through our legal system to final review - one would hope - by the Supreme Court. Meanwhile, in the run-up to the election the President has won favor with his militantly secular, anti-Christian base, even as he himself has had a grand good time showing the Catholic Church (and the world) that he, the Obama, is something bigger than the pope.
That the First Amendment has been violated is clear to anyone who has read the Amendment; it is equally clear that the aforesaid health insurance mandate also stands IN VIOLATION OF A LAW passed by Congress with overwhelming bipartisan support and signed by President Clinton in 1993. That law was entitled (for very good reason) The Restoration of Religious Freedom Act.
May I offer a commentary on that law, a commentary written by two eminent legal scholars: David Rivkin Jr and Edward Whelan. The commentary appeared - where else? - in the Wall Street Journal, February 15th.
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Birth-Control Mandate: Unconstitutional AND Illegal
The Wall Street Journal, February 15, 2012
David B. Rivkin Jr. and Edward Whelan
Mr. Rivkin, who served in the Justice Department under Presidents Reagan and George H. W. Bush, represented the 26 states in their challenge to Obamacare before the trial in appellate courts. Mr. Whelan served in the Justice Department under George W. Bush and is president of the Ethics and Public Policy Center.
Last Friday, the White House announced that it would revise the controversial ObamaCare birth-control mandate to address religious-liberty concerns. Its proposed modifications are a farce.
The Department of Health and Human Services would still require employers with religious objections to select an insurance company to provide contraceptives and drugs that induce abortions to its employees. The employers would pay for the drugs through higher premiums. For those employers that self-insure, like the Archdiocese of Washington, the farce is even more blatant.
The birth-control coverage mandate violates the First Amendment's ..."free exercise" of religion [clause]. But it ALSO violates the Religious Freedom Restoration ACT. That statute, passed unanimously by the House of Representatives and by a 97-3 vote in the Senate, was signed into law by President Bill Clinton in 1993. It was enacted in response to a 1990 Supreme Court opinion, Employment Division v. Smith.
That case limited the protections available under the First Amendment's guarantee of free exercise of religion to those government actions that explicitly targeted religious practices....
The 1993 law RESTORED the same protections of religious freedom that had been UNDERSTOOD to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government MAY "substantially burden" a person's "exercise of religion" ONLY IF IT DEMONSTRATES that application of the burden to the person "is in furtherance of a COMPELLING government interest" and "is the LEAST restrictive means of furthering" that interest.
The law also provides that any LATER STATUTORY OVERRIDE of its protections must be EXPLICIT. But there is NOTHING in the ObamaCare legislation that explicitly or even implicitly OVERRIDES the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus ILLEGAL.
The REFUSAL, for religious reasons, TO PROVIDE BIRTH-CONTROL COVERAGE is clearly an EXERCISE of religious freedom under the Constitution. The "exercise of religion" extends to performing or REFUSING to perform actions on RELIGIOUS grounds -and it is definitely not confined to religious institutions or acts of worship. Leading Supreme Court cases in this area, for example, involve a worker who REFUSED to work on the Sabbath (Sherbert v. Verner, 1963) and parents who REFUSED to send their teenage children to a public high school. In the high school case, the Supreme Court found that EVEN A $5 FINE on the parents SUBSTANTIALLY BURDENED the free exercise of their religion. Under the Patient Protection and Affordable Care Act [a.k.a. ObamaCare], employers who FAIL to comply with the birth-control mandate will incur an ANNUAL penalty of roughly $2,000 PER EMPLOYEE. So it is clearly a SUBSTANTIAL burden.
Objecting employers could, of course, AVOID THE FINE BY CHOOSING TO GO OUT OF BUSINESS. [Some would speculate that this in fact was the mandate's main rationale all along -by ruinous fines to FORCE the Catholic Church in America to CLOSE its schools, its hospitals, its charitable agencies]. But as the Supreme Court noted in Sherbert v. Verner, "governmental imposition of SUCH a choice puts the SAME kind of burden upon the free exercise of religion AS would a FINE imposed against" noncompliant parties.
The birth-control mandate also fails the Religious Freedom Restoration Act's "COMPELLING governmental interest" and "LEAST restrictive means" tests.
Does the mandate further the governmental interest in increasing cost-free access to contraceptives by means that are LEAST restrictive of the EMPLOYER'S religious freedom? Plainly, the answer is no. There are plenty of OTHER ways to increase access to contraceptives that intrude FAR LESS on the free exercise of religion.
Health and Human Services itself touts community health centers, public clinics and hospitals as some of the available alternatives; doctors and pharmacies are others. Many of the entities, with Planned Parenthood being the MOST prominent, ALREADY furnish FREE contraceptives. The government could have the rest of the providers make contraceptive services available free and then compensate them directly. A mandate on employers who object for religious reasons is among the MOST RESTRICTIVE means the government could have CHOSEN to increase access.
The mandate also fails the "COMPELLING government interest" test. Given the widespread availability of contraceptive services, and the far less restrictive OTHER ways to INCREASE their availability, the government can hardly claim it has a "COMPELLING" interest in MARGINALLY increasing access to birth control by REQUIRING objecting employers to join in this effort.
The "compelling interest" claim is further undercut by the mandate's EXCLUSION for purely secular reasons, of employers who offer "grandfathered" plans. These are employer-provided plans that existed at the time ObamaCare was enacted and can CONTINUE to operate as long as they do not make MAJOR changes. They cover tens of millions of enrollees, according to a recent estimate by Health and Human Services.
In an effort to rally its base in the upcoming November election, the Obama administration seems more interested in punishing religiously based opposition to contraception and abortion than in marginally increasing access to contraception services. It is the combination of the political motive, together with the exclusion of so many employers from the mandate, that has profound constitutional implications. It transforms the mandate into a non-neutral and not generally applicable law that violates the First Amendment's Free Exercise Clause.
In short, the birth-control mandate violates BOTH statutory law AND the Constitution. The fact that the administration promulgated it so flippantly, without seriously engaging on these issues, underscores how LITTLE it cares about either. [Emphasis added].
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Mr. Obama's latest assault on religious liberty and on the unborn infants' right to life is all of a piece with his anti-life track record from day three of his presiding in the Oval Office (and in fact dating all the way back to his days as editor of the Harvard Law Journal and his subsequently as Illinois State Senator).
O. Carter Snead, professor of law in the University of Notre Dame's Law School, provides a summary of President Obama's unrelenting campaign as president against the unborn and against the full exercise of religious freedom. The summary appears in the latest issue (March 2012) of that excellent journal First Things.
* * * * *Obama's Freedom Deficit
O. Carter Snead
First Things, March 2012
During the first three years of the Obama administration, the federal government has dramatically turned against religious liberty, prompting Timothy Cardinal Dolan, archbishop of New York, to observe that "NEVER BEFORE have we faced THIS kind of challenge in our ability to engage in the public square as a people of faith and as a service provider." The administration ignored the concerns of religious (and nonreligious) citizens by conscripting taxpayer dollars to support organizations and individuals whose work involves the destruction of unborn human life and by erecting obstacles to the charitable work of religious bodies.
In November 2009, President Barack Obama, and shortly thereafter Secretary of State Hilary Clinton, abandoned the phrase "freedom of religion" when discussing administration priorities in favor of "freedom of worship." The new, narrower term evoked the benign observance of private rites rather than the messy demands of public faith. It was a deliberate and telling change, one that helps to explain a protracted, and in many ways unprecedented, campaign against the faithful.
It began on his third day in office. President Obama restored funding to organizations overseas that provide abortions and moved to reinstate funding to the United Nations Population Fund, which supports China's one-child policy, a program that involves COERCED abortion. Three months after his inauguration, he authorized federal funding for stem-cell research that relies on and creates future incentives for the destruction of living human embryos. In an indication of what was to come, the president ignored the objections of citizens who do not want tax dollars used to support abortion.
In July 2009, the administration's Equal Employment Opportunity Commission (EEOC) reversed its own conclusion and accused Belmont Abbey College, a Catholic liberal arts college, of violating federal employment laws against "gender discrimination" because it REFUSED, on religious grounds, to pay for artificial birth control in its employee health plan.
The health-care reform bill that President Obama signed into law in March 2010 LACKED long-standing restrictions on abortion funding and FAILED TO INCLUDE sufficiently robust CONSCIENCE PROTECTIONS for pro-life health-care providers. In February 2011, the Department of Health and Human Services (HHS) RESCINDED regulations offering conscience protection for health-care providers and replaced them with a more limited and ambiguous set of rules. Most recently, the Obama administration has threatened to stop all Medicaid funding - necessary to provide health benefits to the poor - from any state that withholds taxpayer dollars from abortion providers.
The Obama administration's HHS ALTERED the grant process for the National Human Trafficking Assistance Program to FAVOR applicants who offer referrals to "family planning services" and abortions. When Catholic bishops' highly regarded Migration and Refugee Services sought to renew its government grant, its application received the second highest score and a recommendation of funding from an independent board of career HHS staff. But political appointees close to Secretary Kathleen Sebelius intervened to overrule the department's PROFESSIONAL staff, and the funding went to two applicants who scored SUBSTANTIALLY LOWER than MRS but who were willing to provide referrals for abortion and contraception.
In August 2011, the Department of Justice (DOJ) filed a brief in the Supreme Court arguing that the religious clauses of the First Amendment do NOT entail any "ministerial exception" protecting religious institutions from governmental interference in decisions regarding who serves as a minister to the faithful. The DOJ did grudgingly concede that churches have the same "freedom of association" as "a labor union or social club," BUT NO MORE. This argument was so extreme that not a single justice of the Supreme Court accepted it - not even President Obama's former solicitor general, Justice Elena Kagan - and the court rejected the Obama administration's arguments 9-0.
That same month, [August, 2011 as the pace of the attack quickened] pursuant to the new health-care law, HHS issued the guidelines requiring all non-grandfathered health plans to provide "all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling." Pro-life groups protested, pointing out that some of the covered "contraceptives" can (according to the FDA's own labeling) prevent or disrupt implantation, thus causing the death of a newly conceived embryonic human being. Many also objected because they believe the use of artificial contraception and sterilization is contrary to the ends of human sexuality, rightly understood.
The administration attempted to deflect these concerns by carving out a very narrow "conscience exception" that covered only "a HOUSE OF WORSHIP and its employees in ministerial positions." An organization can be included in this exception, the administration said, if it "(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(3)(A) (i) or (iii) of the Code." Section 6033(a)3(A)(i) and (iii) refer to churches, their integrated auxiliaries, and conventions or associations of churches as well as the exclusively religious activities of any religious order. Any religious charity that did not EXCLUSIVELY serve members of its own church - everything from Catholic Relief Services to the Salvation Army - would receive NO exception. The interim final rule claimed that the "conscience clause" would balance the good of extending contraceptive coverage to as many women as possible with appropriate respect for "the unique relationship between certain religious employers and their employees in certain religious positions."
A large and politically diverse array of religious leaders called for the exception to be broadened. They noted that very few faith-based educational institutions, health-care providers, or social-service agencies would meet the narrow definition of "religious employer." Those that did not would be forced either to violate the law and face ruinous Treasury Department penalties or to stop emulating the Good Samaritan through their work of educating, healing, and serving the weakest and most vulnerable among us without respect to their religious identity. EVANGELICAL LEADERS raised an impassioned plea for a revised "religious employer" exemption that would include religious organizations not formally affiliated with a particular denomination, and more than four hundred Catholic leaders signed an open letter calling for health-care laws that "respect the religious and ethical convictions of all."
On January 20, 2012, Kathleen Sebelius issued a statement that the Obama administration WOULD NOT MODIFY its contraceptive mandate in response to the concerns raised by religious institutions. It would, however, allow religious entities an additional year to make arrangements for compliance. She noted further that those religious institutions that REFUSE to provide coverage must "provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support."
The vanishingly small "religious employer" exception tells us a great deal about how the White House misconceives religious practice. Notice how private this conception is - limited to sectarian activities that involve only co-religionists. There is no space in it for the living of fully integrated lives, with faith permeating every aspect of human activity. But being and acting in the world as a witness and servant to others -ALL others, regardless of their beliefs, circumstances, or station in life - is an INDISPENSABLE aspect of many faiths. As Baltimore's William Cardinal Keeler once states, "We don't educate [the poor students in the inner city of Baltimore] because they are Catholic. We educate them because we are Catholic." The work of Catholic hospitals, social service agencies, and universities is a form of evangelization - of bearing witness to the love of Christ.
Yet the Obama administration's religious exception would relegate religious practice to the purely private, insular domain of belief. Accordingly, the Obama administration is willing to defend religious freedom only within that narrow, private space. Understood in this light, it becomes clear why the administration prefers the phrase "freedom of worship" to the more capacious "freedom of religion." The former is a PRIVATE, individual activity that can be walled off from the public square. The latter describes the reality that religion is a NECESSARILY PUBLIC concern. This likewise explains why, in arguing before the Supreme Court, the Obama administration has drawn an equivalence between religious institutions and other secular voluntary associations (like bowling teams or knitting circles).
In a time of economic crisis and human suffering, the administration has imposed barriers on faith-based institutions that feed the hungry, clothe the naked, heal the sick, and educate the young. For many, it has made the cost of admission to public service the betrayal of their most deeply help convictions about how to serve God and remain faithful to his teachings regarding human dignity, justice, and the common good. Let us hope not merely that the next president reverses Obama's concrete policies but also that he embraces a richer conception of what constitutes religious practice. It is not just the freedom of the religious that hangs in the balance, but the welfare of the needy and the strength of our civic fabric.
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