By Fr. George Welzbacher
July 8, 2012
There's much to be said for a monthly newsmagazine that is concerned not with racing to report the very latest events almost as they are taking place but rather with standing back for a while and watching events unfold and then, after thought, offering comment. High on the list of such monthly magazines I would place Newsmax.
May I share with you here an excellent analysis offered in the July issue of Newsmax, an analysis of the new challenge to freedom of religious practice, the freedom to carry out in service to the general public the social demands of one's faith, that Christians are faced with today. Threatened with ruinous fines for refusing to be an accomplice in what the Catholic Church defines as evil, the Church may soon be forced to withdraw from providing education, care for the sick and other charitable services to the public. The essay, written by David A. Patten, presents an excellent example of the kind of analysis that readers of Newsmax have now come to expect.
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Newsmax, July 2012
David A. Patten
The first salvo in the war on religion was fired long before the official declaration of hostilities.
It came in an angry phone call to small-town attorney Deano Ware. When Ware picked up the phone in his office in the tiny Detroit suburb of Redford, Mich., population 48,362, he had no idea that it would ultimately entangle him in what The Wall Street Journal would term one of "the most important religious liberty cases in a half century."
Ware was stunned to get an earful from another attorney who was threatening to use the full might of the federal government to close down Ware's little church, Hosanna-Tabor Lutheran Church.
The lawyer at the other end of the line represented a woman who had been a minister at Hosanna-Tabor several years past. Her job only rarely entailed leading prayer services at the school; her primary function was to teach children. The church referred to her as a "called teacher" and a minister.
She had left her job at the church in 2004 due to a mysterious health problem. Hosanna-Tabor's policy held that any employee would be terminated after missing several months of work. With a new school year looming, the church hired a replacement.
Nonetheless, the former employee showed up, insisting she be rehired. She said she had been diagnosed with narcolepsy, a chronic sleep disorder that causes victims to fall asleep at inappropriate times. And she was claiming she had been terminated in violation of the Americans with Disabilities Act.
The Equal Employment Opportunities Commission (EEOC), which was first established in the historic Civil Rights Act of 1964, announced it was taking up the woman's cause. She refused to settle for less than $200,000. Ware knew that would bankrupt his little church, which only had about 120 active members.
That Ware DIDN'T immediately give up and advise the church to file for bankruptcy probably had a lot to do with his gritty, inner-city background. When he was 7, Ware says, his parents dropped him off at his grandparents. Without parental guidance from that point forward, Ware grew up in one of those rough neighborhoods where kids are more likely to be sent to prison than to college. Yet he harbored an improbable dream - to be a lawyer.
His escape came courtesy of the U.S. Army. Ware enlisted, and his high test scores landed him a slot in the Judge Advocate General's legal office in Heidelberg, Germany.
After leaving the Army, Ware earned a bachelor's degree from Michigan State. With a family to support, he began working as a manager at a restaurant. But he never forgot his dream of becoming a lawyer.
A devout Christian, Ware began praying for providential guidance. And like so many believers, after praying long and hard he began to sense he was receiving an answer.
"The Lord kept telling me... 'I need you to do something. You're going to do something for me'', Ware tells Newsmax. "You're going to take something to the highest court in the land."
With that assurance, Ware began attending law school at night and earned his law degree.
He eventually passed the bar, opened up a small practice, and joined the church. When Ware got the call from the attorney, he wasn't even Hosanna-Tabor's legal counsel. The church was far too poor to afford one. But he began researching the law anyway, and decided the church's best chance for survival was a little-known legal provision called "ministerial exception."
The ministerial exception simply meant the government could not force CHURCHES to retain any MINISTER. Gender, disability, and sexual orientation cases did not merit special protection if those employees were ministers. In other words, the government's social-justice imperative did not trump the foundational First Amendment right to practice one's religion.
After all, what good was the First Amendment if the government could tell a church which pastor to retain?
It was on precisely this ground that the church won a summary judgment at the trial level. But the Obama-era EEOC WOULDN'T TAKE NO FOR AN ANSWER.
In October 2009, the EEOC APPEALED to the Sixth Circuit Court of Appeals in Cincinnati, arguing that the teacher who had been terminated was not actually a minister, and therefore was not protected by the ministerial exception.
The Sixth Court has 25 judges. Of the three who heard the EEOC's Hosanna-Tabor case, one was a Reagan appointee, one was a Clinton appointee, and one was nominated first by Clinton, and then later re-nominated by George W. Bush in an effort to loosen a logjam of appointments that were being blocked by Democrats.
The three judges noted that the fired worker only spent about 45 minutes per day on religious duties. Because she spent most of her time teaching rather than preaching, the appeals court reversed the lower court's decision. It ordered the case to be tried WITHOUT reference to the religious status of the parties involved.
Ware thought that missed the point, however. If the government could DICTATE who WAS or WAS NOT a minister, a rabbi, a pastor, or a priest, what religious liberty was left? "That to me was the core constitutional issue," he tells Newsmax, "that a court is going to tell a church now who is and who is not their minister. Somebody we've ordained or commissioned, and trained, and now the court is going to tell us that she's not a minister."
The Sixth Circuit's verdict in March 2010 was a devastating setback, and Ware advised his church elders to prepare for possible bankruptcy. The little church in a Detroit suburb was on the verge of being snuffed out by the federal bureaucracy. But the Sixth Circuit ruling also proved to be a blessing in disguise. The case drew national publicity.
Not long after that court rejected Ware's claim of ministerial exception, he received a phone call from The Becket Fund for religious Liberty.
The Washington, D.C.-based, non-profit religious liberty organization offered to help him appeal the Sixth Circuit's ruling to the Supreme Court, which had never ruled on the ministerial exception. It agreed to hear the case. Once and for all, the court would decide whether the federal government could use equal-employment laws to tell churches whom to retain as ministers.
In October, Ware bought a train ticket, booked a hotel room, and arrived in Washington, D.C., to hear the oral arguments. He arrived with less than $50 to his name. His church had been unable to pay his legal bills. He'd poured his last dollar into defending Hosanna- Tabor.
By trying to save his church from bankruptcy he'd nearly bankrupted himself But Ware hadn't made it out of Detroit's inner-city by giving up without a fight. For religious-liberty advocates, the stakes could hardly have been higher.
If Ware and the Becket Fund lost, it would set back the cause of religious liberty for a generation. Leaders of churches, synagogues, and mosques around the country would have to operate knowing the EEOC, or any other part of the federal bureaucracy for that matter, could step in at any time to veto their decisions.
If, on the other hand, the little church could prevail against the government's battalion of attorneys, the "ministerial exception" would finally enjoy the ultimate imprimatur. Winning Hosanna-Tabor might put the brakes on an administration that had boldly asserted its power to sue churches and to reduce the tax incentives for contributions to charities.
After the oral arguments, Ware took the train back to Detroit to return to a struggling law practice and a marriage that was breaking up because he couldn't pay his bills.
In January, the Supreme Court rendered its decision. Ware says: "I'd already told the Lord, 'If we win, wherever I'm at, I'm going to drop to my knees immediately and thank you.' And that's exactly what I did. Luckily, I was in my office."
The court's opinion blasted the administration's case as "extreme" and untenable," and granted the First Amendment protection for a ministerial exception. What "blew all of us away," Ware says, was the vote TALLY. The UNANIMOUS 9-0 decision was hailed by legal scholars as perhaps the most important religious-liberty case in a generation. "The exception ensures that the authority to select and control who will minister to the faithful is the church's ALONE," declared Chief Justice John Roberts.
Even President Obama's own judicial appointees to the Supreme Court, Justices Elena Kagan and Sonia Sotomayor, had rejected the administration's attempt to deny the ministerial exception under the First Amendment.
The Wall Street Journal described the verdict as "a crushing rebuke to the Obama administration."....
The unanimous ruling sent a clear message: The JUDICIAL branch wasn't waging war on religion. That was coming from the EXECUTIVE.
But if Hosanna-Tabor represented the first firefight, the administration's OFFICIAL declaration of hostility toward religion came on January 20 with what appeared to be a routine exercise in bureaucratic rulemaking by Health and Human Services Secretary Kathleen Sebelius. On that date, she announced the final rules that employers would have to follow under the Patient Protection and Affordable Care Act, aka Obamacare, in the healthcare coverage they offered their employees.
The new rules required that ALL employers, INCLUDING FAITH-based service ministries and charities, offer insurance to their employees that would cover "preventative services" free of charge. These services included contraception, the morning after pill, and sterilizations.
Only organizations that met the HHS's narrow definition of a "religious employer" - churches, synagogues, and mosques - would be able to avoid the requirement by qualifying for exemption.
Sebelius announced: "This decision was made after very careful consideration, including the important concerns some have raised about religious liberty. I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventative services."
Catholic and Protestant leaders saw the regulations quite differently, as nothing less than an effort to limit the expression of religion in America. They had tried for months to get the administration to adopt Obamacare regulations that would not force charitable outreach ministries to offer their employees services that VIOLATED ESSENTIAL PRINCIPLES. But Sebelius's announcement signaled that effort had clearly FAILED.
The Catholic Church perceived the regulations as an assault on its CONSCIENTIOUS OBJECTOR status in the realm of reproductive services - the church will NOT provide abortion or birth-control services to patients, or its employees.
The Archdiocese of Washington, D.C., led by Cardinal Donald Wuerl, blasted the rules as "an UNPRECEDENTED attack by the federal government on one of America's most cherished freedoms."
Requiring faith-based organizations to offer sterilizations and abortion-inducing drugs delighted Planned Parenthood and the secular left. But it brought on several unintended consequences.
It UNITED socially-conservative Catholics and evangelicals in a way a thousand ecumenical conferences could never do.
Tony Perkins' Family Research Council issued a letter SIGNED BY 2,500 PASTORS AND EVANGELICAL LEADERS VOWING SOLIDARITY WITH CATHOLICS. Conservatives in Congress reacted as well.
"This is much, much bigger than about contraception," said GOP Rep. Paul Ryan of Wisconsin. "This is about religious freedom, First Amendment rights, and how this progressive philosophy of fungible rights of a living breathing Constitution really clashes and collides with these core rights that we built our society and country around."
Craftily, they believed their stance requiring Catholic and other religious institutions to provide birth control would be viewed PURELY as an issue involving contraception and women's reproductive freedom, which enjoyed broad support from women and independent voters according to various polls.
At first, that appeared to be the public's perception - until the Catholic Church fired back.
In May, Catholic leaders launched what could be the largest religious-liberty action EVER. A dozen lawsuits were filed on behalf of 43 organizations nationwide.
The lawsuit filed in U.S. District Court in the Eastern District of New York, on behalf of the Archdiocese of New York that is led by Cardinal Dolan, charged: "In order to safeguard their religious freedoms, religious organizations must plead with the government for a determination that they are sufficiently 'religious.'"
With that broadside, the issue suddenly risked alienating the mainstream Catholics generally. The obvious question: Why would the administration go out of its way to pick a fight with people of faith, just months before the November elections?
George J. Marlin, the conservative columnist and best-selling author of Narcissist Nation: Reflections of a Blue-State Conservative, thinks he knows the answer.
"Obama's assault on religious liberty is by design," he tells Newsmax. "Secular ideologists like Obama want people to look to the state or THEMSELVES for guidance, NOT to organized religion. In effect, they want to substitute religious values with the enlightened, utilitarian values of the managerial elite."
Discouraging Catholic institutions, he says, could induce them TO HAND OVER TO GOVERNMENT the keys of their soup kitchens, adoption agencies, homeless shelters and hospitals.
For months leading up to the Sebelius announcement, Cardinal Dolan of New York and other Catholic leaders tried to work out a compromise with the White House. AND DOLAN THOUGHT HE HAD.
In March, the Cardinal told The Wall Street Journal that OBAMA PROMISED during an Oval Office meeting that HHS regulations would RESPECT "THE RIGHTS OF CONSCIENCE."
"So you can imagine the chagrin," Dolan told the Journal's James Taranto, "when [President Obamaj called me at the end of January to say that the mandates remain in place and that there would be NO substantive change." The nation's No.1 Catholic leader was charging the president with breaking his word.
After reneging on the promise to respect churches' "rights of conscience," the administration offered them a one-year transition period before the mandate would take effect. Dolan said this amounted to giving Catholics "a year to figure out how to violate [their] consciences."
THE ADMINISTRATION did offer an exemption to "religious employers" to avoid offering services they found morally unacceptable. At the same time, it established three tough conditions to meet in order to qualify.
The FIRST required an organization to be devoted to the "INCULCATION of religious values." Organizations that expressed their religious beliefs by acting on them in public, perhaps by helping poor children purchase school supplies, for example, would NOT qualify for the exemption as their activities transcended "inculcation."
The inculcation rule meant that Christians could preach to the homeless shivering on the streets of Boston. But if they opened a shelter to help them, they would LOSE their religious exemption.
Kyle Duncan, a general counsel for the Becket Fund, observed, "The government seems to be saying, 'You can go worship in a church, but when it comes to being out there in civil society and doing something for people, you are going to have to get in line with everybody else.'"
The church decried the rules as an "unprecedented attack" on religious freedom.
The SECOND condition for the exemption that also had to be met: A majority of an organization's employees would have to share its values. It seemed likely any faith-based charity seeking a religious exemption would find itself squeezed between equal-employment Laws on the one hand, and the religious-exemption REQUIREMENTS on the other.
The THIRD and most troublesome hurdle to religious autonomy: A majority of those SERVED by an organization MUST SHARE ITS RELIGIOUS VALUES. For Catholics, the notion of IMPOSING A RELIGIOUS LITMUS TEST for someone in dire need, which was what the government seemed to be suggesting, was repugnant.
As Marlin speculates, it was almost as if the rules were designed to encourage faith-based organizations to STOP SERVING the community. Catholics see service to life's disadvantaged as a core element of their faith. "By a stroke of the pen and a definition," said Jane Belford, chancellor of the Archdiocese of Washington, D.C., "they have defined away our religious freedom, to make it only 'freedom to worship."'
Under the federal guidelines, Mother Theresa would not have qualified for a religious exemption, Belford said.
The regulations also raised the issue of how the exemption would be enforced. Would government inspectors review and verify churches' exemption claims? Would Big Brother conduct surveys to ascertain whether the beliefs of employees and clients matched those of the church?
The backlash was fast and furious. Cardinals Dolan and Wuerl protested the new policy. Even LIBERAL Catholics, including Washington Post columnist E. J. Dionne and MSNBC host Chris Matthews, criticized the rules.
Facing a potential split within his own party, President Obama reframed the debate in remarks made in February that were carefully calibrated to give progressive Catholics the fig leaf they needed to return to the ... fold.
He promised a vague accommodation of Catholics' moral concerns by shifting the responsibility for free reproductive services onto the insurance companies rather than the institutions themselves; and secondly, he characterized any further opposition as an attack on a woman's right to control her own body. "Religious liberty will be protected," Obama promised, "and a law that requires free preventative care will not discriminate against women."
But Catholic leaders, who went to great lengths to state they were not proposing a prohibition on contraception, felt requiring the insurance carriers to foot the bill was disingenuous. Many Catholic charities and institutions are SELF-insured. If outside insurance carriers were used, they would simply jack up their premiums
There were growing signs the battle for religious liberty was just begriming, culminating in a May 21 announcement of a massive legal counter-attack by the Catholic Church in defense of religious liberty.
The church filed a dozen lawsuits simultaneously on behalf of 43 Catholic organizations, including the Archdiocese of New York and the Archdiocese of Washington, D.C. The plaintiffs included the University of Notre Dame, which in 2009 presented Obama with an honorary degree in spite his support for abortion rights.
The issues raised by the Hosanna-Tabor case bear an uncanny similarity to the HHS effort to define what constitutes a "religious employer." Both cases reflected an effort to elevate an issue of social justice ABOVE, other rights vouchsafed by the First Amendment.
They also sought to constrain religion by defining it. The government, in other words, did not attack the First Amendment directly. Rather, it said certain employees or organizations did not fall under the First Amendment's protection because they were not, in the GOVERNMENT'S view, quintessentially religious.
Despite the 9-0 Hosanna-Tabor ruling, it is by no means clear whether defenders of religious liberty will defeat the attempt to impose the contraception mandate. A 1990 Supreme Court decision, Employment Division v. Smith, held that organizations cannot shield themselves behind religion in order to evade generally applicable laws. So the plaintiffs know a host of legal land mines await them.
All of which raises a deeper issue: Why is the administration so determined to limit the rights of charities, which provide DESPERATELY NEEDED social services? "This is wrong. It is unfair," declared GOP Rep. Jeff Fortenberry of Nebraska. "Why would the federal government seek to UNDERMINE these extraordinary institutions of care?"
In the nation's capital alone, Catholic-affiliated entities provide services to over 100,000 people PER YEAR. It is not clear how local governments would cope. That concern is not theoretical. According to the Unites States Conference of Catholic Bishops, Catholic adoption agencies and foster care ministries have been forced out of business in Boston, San Francisco, the District of Columbia, and Illinois for refusing to place children with same-sex couples or unmarried heterosexual couples.
Author Marlin believes technocratic elites KNOW that TURMOIL WOULD FOLLOW any mass SHUTDOWN of Catholic social services. But he says they would gladly ACCEPT that price in return for a long-term MONOPOLY on the entitlement state. "These big government guys are what they are, and they'll put up with chaos for a while in order to get their way," he says.
Ware agrees that larger forces are at play: "You have an anti-religious, liberal government in place now. They have an agenda to basically eviscerate .... religion in our society .......
Marlin, however believes the administration may have miscalculated the reaction of swing-state Catholics. "Older Catholics who stayed home four years ago may well come out this year," he says. "For the 1-4 percent of the Catholic voters in those states who come out again to vote in those states along social lines, that can tip things over."
Ware does not pretend to know what the political outcome will be. But based on his Hosanna-Tabor experience, he believes he can predict the legal outcome.
"What the court ruled unanimously in our case was that the principle of freedom of religion is larger than any exception that Congress can write into a law. It exists separate and apart from not only the exceptions, but the law itself," he says.
"It's part of our Constitution and the fabric of this nation. So they're gonna lose that. I can almost tell you that more confidently than I could have told you about the outcome in Hosanna-Tabor."
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