Archive for the ‘Religious Liberty’ Category

A Bleak Outlook for Religious Liberty?

Wednesday, September 24th, 2014

For the past few years, disputes over religious liberty has been very prominent parts of the American legal and political agenda. No observer of the state of religion in our nation can fail to be struck by the series of difficult and contentious controversies. The HHS mandate and the redefinition of marriage are just the most recent examples that have brought the conflict into stark view.

This conflict has attracted a great deal of attention from legal and political scholars.  In my view, no book does a better job of explaining its background and likely future course than the recent sobering work by Steven Smith, The Rise and Decline of American Religious Freedom. Prof. Smith is one of the leading scholars of religious liberty, which might scare people off from this book. But his writing is remarkably accessible to non-experts, and anyone with a basic knowledge of American history would find it a fascinating and compelling read.

The basic thesis of the book is to contrast what Prof. Smith calls the “standard story” of American religious liberty, which is generally accepted and taught in academia, with a “revised story” that he proposes as a better explanation for where we’ve come from and where we’re going.

The “standard story”, in essence:

tells how, under the influence of the Enlightenment, the American founders broke away from the intolerance and dogmatism of centuries of Christendom and courageously set out on a radical new experiment in religious liberty. More specifically, the founders adopted a Constitution that committed the nation to the separation of religion from government and thus to secular governance that would be neutral toward religion.  These commitments were not immediately realized… Even now the achievement is under threat… mainly from religious conservatives…

This basic description of the “standard story” should be familiar to all, since it is reflected in Supreme Court decisions and the general public debate about the role of religion in our society.  It is the story that I learned in law school, and, I imagine, that is taught in every high school and college history and political science class.  It is the story of the alleged “wall of separation” that keeps push religious groups and ideas out of the public square.  It is the reason that our courts and legislatures increasingly find little reason to accommodate or protect unpopular religious beliefs and practices.  Prof. Smith says that the general acceptance of the “standard story” has reached such a point that nobody feels a need to explain or defend it.  Instead, it has become one of those things of which people say, “as we all know…”

According to Prof. Smith, the problem with the “standard story” is that it is actually false in many significant respects.  Instead, he proposes a “revised story” that better explains the history of American religious liberty in key ways:

  • American religious freedom is mostly a retrieval and consolidation of Christian themes (with some pagan principles mixed in), particularly libertas ecclesiae (freedom of the church), and freedom of the “inner church” of conscience.
  • The First Amendment religious clause did nothing radical or dramatically new, but instead re-stated principles that were uncontroversial at the time — a limitation on the jurisdiction of Congress relating to Churches and religion.
  • The first century and a half of our history were a “golden age of American religious freedom”.  It was not a time in which the Republic failed to live up to the ideals of the First Amendment, but instead  those ideals were allowed to grow and work out through the democratic process.  Prof. Smith proposes that this was the time of the “American settlement”, which rested on the separation of church from state (but not a strict exclusion of religion from government) and freedom of conscience, together with “open contestation” about what that meant in practice.
  • The modern Supreme Court, far from restoring the original ideals of the First Amendment, wrongly rejected the American settlement and instead declared that secularism is the controlling principle of constitutional law.  This brought an end to the open discussion and debate about our differences, and sought (usually inconsistently and incoherently) to impose hard rules to limit the role of religion in law and government.
  • The result is that religious freedom is in jeopardy, particularly when it comes into conflict with the modern ideologies of egalitarianism and sexual liberation.
  • In the end, Prof. Smith is pessimistic about the future of religious freedom in America, and he believes that life in our nation will suffer as a result.    Given all that we have seen in recent years, it is difficult to disagree with him.  One thinks of the intransigent refusal of legislatures to grant sufficient conscience clause exemptions from laws redefining marriage, or expanding availability of contraception or abortion.  Or we can cite the Administration’s denial of the right of religious organizations to choose their own ministers, according to the dictates of their faith.  And there is always the rhetorical tactic of certain politicians to brand religious believers as “extremists” who are unwelcome in their own home states. Or the tendency of judicial opinions to brand religious beliefs on marriage as irrational hatred or bigotry.

    This book is an important contribution to the ongoing debate over the role of religion in contemporary society. It provides a much-needed balance to the “standard story”, which has dominated the public discussion and the law-making process. It is essential that legal professionals, policy makers, and engaged citizens understand the true history of religious liberty.

    Prof. Smith reminds us all that religious liberty is very fragile, but it is very important to a healthy American society. Such a fundamental freedom, deeply rooted in American and Western history, cannot be so lightly thrown away, or forced to depend on narrow majorities of the Supreme Court. In particular, he warns us that “states that fail to protect religious freedom usually trample on other freedoms as well”.

    The Enemies of Religious Freedom Declare Themselves

    Saturday, July 12th, 2014

    There have been many results from the Supreme Court’s religious freedom ruling in the Hobby Lobby/Conestoga Wood case.  One is that we can more readily identify many people who either lack fundamental reading comprehension skills or are subject to such ideological blindness that they egregiously mis-characterize what the case actually held.

    Perhaps most important, though, is that we can now see very clearly who the enemies of religious freedom are — and we can see that they are heavily represented in the Democratic Party delegations in Congress.

    This can be seen very plainly from new bills introduced in both the House and the Senate (S.2578 and H.R.5051), reportedly in consultation with the Administration.  These bills purport to be a way of overturning the Hobby Lobby/Conestoga Wood decision, and forcing for-profit businesses to comply with the HHS mandate to provide insurance coverage for abortion-causing drugs, contraception, and sterilization.

    But they go much, much further than that.  In fact, they directly and seriously endanger the religious freedom of every church and religious non-profit, and any other organization that is operated by faith-based persons who don’t want to cooperate with evil.  This is a proposal of “startling breadth” (to quote Justice Ginsburg’s dissent in Hobby Lobby/Conestoga Wood), and astonishing audacity.

    As with every bit of legislation the devil (literally) is in the details.  So let’s break down the actual language of the bill, and explain what it means.  Here is what the House version of the bill says (in italics), with my analysis to follow:

    (a) In General — An employer that establishes or maintains a group health plan for its employees (and any covered dependents of such employees) shall not deny coverage of a specific health care item or service with respect to such employees (or dependents) where the coverage of such item or service is required under any provision of Federal law or the regulations promulgated thereunder.

    The key word here is “employer”.  Nowhere in the bill does it define that word, so it is an outright lie to claim that the bill is limited to overturning the Supreme Court’s decision, which was limited to family-owned corporations.  This bill would instead reach every single employer in the United States that has an employee health plan — individual business owners, churches, schools.  Nobody would be exempted.

    It would also cover any health care “item or service” required to be covered by federal law or regulation — which is so broad as to potentially include any number of evils our federal government might choose, such as abortion, contraception, IVF, sex-change operations, and euthanasia drugs.

    The significance of this becomes even more clear when we look at another section of the bill:

    (b) Application – Subsection (a) shall apply notwithstanding any other provision of Federal law, including [the Religious Freedom Restoration Act].

    This would give employers essentially no defense to any law passed by Congress or imposed by executive fiat that would substantially burden their faith by requiring them to cooperate with evil.  In other words, people of faith would be reduced to second-class citizen status.  This echoes infamous prior court decisions, as if the bill’s sponsors thought that religious employers “had no rights which the [government] was bound to respect” (to quote the Dred Scott decision], or as if they were not “recognized in the law as persons in the whole sense” (to quote Roe v. Wade).

    It gets even worse — here’s where the real evil lies:

    (c) Regulations — The regulations [relating to the current HHS mandate] shall apply with respect to this section.  The Departments of Labor, Health and Human Services, and the Treasury may modify such regulations consistent with the purpose and findings of this Act.

    In other words, the government shall have carte blanche to change the HHS mandate at a whim, or to impose any other mandate they wish.  So there is no limit to what can be done by a future administration with even more commitment to the Cult of Moloch (i.e., the Planned Parenthood, pro-death agenda) than the current regime.  Nothing would stop them from removing the current HHS mandate exemption for churches and “accommodation” for religious non-profits, and enact regulations that would require coverage for abortion, euthanasia, you name it — and there would be no defense under the Religious Freedom Restoration Act.

    If there were any further question about the fragility of religious freedom in America today, this bill removes any doubt.  The sponsors of this wicked bill have openly declared themselves to be enemies of religious freedom.

    Here is a list of the House sponsors — 142 as of the date this is posted, all of them Democrats.  Here are the Senate sponsors — 42 of them, all Democrats, including the original sponsor of RFRA, our own Senator Charles Schumer. If your representative is on the list, contact them right away.

    Nelson Mandela once said “I cherish my own freedom dearly, but I care even more for your freedom.”  Ask your representative why they don’t agree, and remember well the answer, when they come asking for your vote.

    Getting Past the Hysteria

    Thursday, July 3rd, 2014

    The Supreme Court’s decision in the Hobby Lobby/Conestoga Wood case has certainly been the cause of much controversy. This is natural, and to be expected, since it touches upon so many key issues in the so-called “culture war”, and it was both a hotly contested and much anticipated decision.

    But much of the reaction to the Court’s decision has been, well, a bit unhinged. Some have claimed that the Court was casting women back into virtual slavery. One legal commentator for a major newspaper stated openly — and bizarrely — that the reason for the Court’s majority ruling was simply that they lacked a uterus.  Right.

    Why all the hysteria?

    I think much of it is a result of the nature of the controversy itself — one that goes to the heart of conflicting visions of who we are.

    One of the key issues underlying this case is the role of women in society, and how that is to be assured. Everyone agrees that women should be a full and equal participants in society, free from unfair treatment. But we are in a pluralistic society, and there are many views on how that is to be accomplished, which necessarily involves differing views on the questions of fertility, sexuality, human life.

    Many women and couples consider controlling their fertility to be a core value, and have organized their lives around it. They believe that easy, low-cost access to contraceptives is essential to their lives.  They view anything that works against that value, and, indeed, anything that casts doubts upon it or appears to disagree with it, as a direct attack on their self-definition and identity.

    We disagree with that value. But, in our pluralistic society, it is a reality that we must recognize.  The fact is that those views have a place at the table in the public discussion.

    But pluralism is a two-way street. As Catholics, we have a different view of sexuality, fertility, and human life.  Our values are based on our faith, reason, and a particular understanding of the nature of the human person. We believe that fertility is a gift, not an “unwanted physical condition”. It’s a blessing given to us by God, inherent in human nature as male and female, and not a curse. To deny this is to deny an essential part of who we are, and to set us at war with ourselves.  As a result, we believe that the “contraceptive mentality” is bad for individuals, relationships, and society.  We are convinced (largely from our own failings and hard-earned experience) that the virtue of chastity is a beautiful, beneficial way for people to live and love.

    We also believe in the sanctity of human life, from the first moment of conception. It is a scientific fact, not a matter of religious belief, that at the moment of conception a new, individual, unrepeatable human being comes into existence. We also believe, based both on faith and reason, that it is a grave injustice to deliberately end the life of any innocent human being, and is a sad failure in our duty to love one another.

    We have also organized our lives around these values, which are central to our religious faith.  It’s not just something that we do on Sunday morning, or in the privacy of our homes.  It’s essential to our self-worth and identity, and it affects all aspects of our lives.

    We understand that many people disagree with us — just as we disagree with them.   But, again, in our pluralistic society, it is a reality that others must recognize.  The fact is that our views have a place at the table in the public discussion.  In the end, people should certainly be free to make their own decisions about fertility and sexuality and the meaning of their lives – but so should religious people.

    The American way is to guarantee the freedom, equality and autonomy of everyone, including religious people, to live lives of integrity, in keeping with their core values.   We have long recognized that.  Our laws are full of religious accommodations, like the exemption from the draft for Quakers, and the freedom from saying the Pledge of Allegiance for Jehovah’s Witnesses.  This is a matter of basic respect, civility, and just plain good manners. 

    The bottom line is that there is a serious conflict of values going on here, one that is difficult, if not impossible, to resolve definitively.  There’s no easy answer, no magic bullet, that will solve all the disputes and make everyone happy.  And “winner take all” is a terrible way to conduct politics — some people will triumph, but it also means that many of our neighbors will be “losers”.   That’s no way to have a healthy community.

    People naturally respond emotionally, even hysterically, when they’re scared that their way of life and values are threatened.  Even though we won this particular case, we’re scared too — our religious freedom is very fragile right now.

    So maybe it would be a good idea to turn the volume down a bit, recognize the raw feelings on all sides, and try to find a way that we can preserve as much as possible of everyone’s values, while preserving a sense of unity, solidarity, and mutual love.

    An Encouraging Victory for Religious Liberty

    Tuesday, July 1st, 2014

    The Supreme Court has issued a very important ruling on the HHS mandate.  By a narrow 5 to 4 majority, the Court found in favor of the religious liberty rights of two family-owned businesses, Hobby Lobby and Conestoga Wood.  The Court held that they do not have to fund insurance coverage for abortion-causing contraceptives that they consider to violate their religious beliefs about the sanctity of human life.

    This is a significant victory for religious liberty. It shows that the government does not have unlimited power to force people to violate their beliefs. It is also a vindication for all those who have objected to the HHS mandate, and who have defended religious freedom.

    There has been, and will continue to be, a great deal of commentary on this decision.  At this point, though, it’s valuable to make sure that we understand clearly just what the Court did, and what it did not do:

  • The decision was was based on the federal Religious Freedom Restoration Act (“RFRA”), and not the Free Exercise Clause of the First Amendment.   However, the Court recognized that RFRA offers broader protection to religious liberty than the First Amendment.
  • The decision does not in any way restrict access to contraceptives, nor will it impose any additional costs on women who seek them.  This ruling is very limited — it just requires the government to find some other way to accomplish the basic (and in my view, lamentable) goal of the HHS mandate — free contraceptives — without requiring the corporations to pay for them.
  • However, the ruling does mean that the government, in pursuit of its public policy goals, cannot impose substantial burdens on religious believers, without seeking some way to accommodate or exempt them.
  • It is not clear what impact this decision will have — if any — on the challenges brought against the HHS mandate by religious non-profit organizations like the Little Sisters of the Poor and Catholic Charities.   There is much speculation about this, even to the point of very close analysis of a particular sentence in the majority opinion, but that’s all it is — speculation.  The Court specifically left that issue open for a future decision.
  • This case upholds the idea that corporations have legal standing under RFRA (in legal parlance, they are “persons” within the meaning of the statute).  The Court recognized that corporations are just vehicles through which real, live human beings act, and, in some cases, exercise their own constitutional rights.  This is an important recognition of the Catholic social teaching about the value of mediating institutions that operate in society and stand between the state and individuals.
  • The ruling was limited by the Court to closely-held corporations that are controlled by religious people who operate with explicitly religious missions.  It does not give carte blanche to all corporations to ignore generally applicable laws.
  • Nor does the case give automatic permission for religious people to engage in discrimination on account of race, sex, etc.  Despite the fear-mongering in the dissenting opinion and in the media, this notion was specifically ruled out in the majority and concurring opinions.  Any claim for a religious exemption will still have to satisfy the scrutiny of a court, applying the standards of RFRA to the particular facts of each individual situation.
  • The Court did not strike down the Affordable Care Act or the HHS mandate in general.  That was not at issue in the case at all.
  • The discussion and debate about this issue, and about the general intersection of law and religion, will certainly continue.  A pluralistic society like ours should recognize and respect a broad scope for the fundamental human right to freedom of conscience, consistent with public order and safety.

    So we have much to be thankful for.  Please give thanks to God for the wisdom of the Justices in the majority of the Supreme Court, and for the courage and persistence of the owners of Hobby Lobby, Conestoga Wood and their attorneys, particularly those at the Becket Fund and Alliance Defending Freedom.

    Resistance to the Dictatorship of Relativism

    Wednesday, March 5th, 2014

    Pope Benedict famously warned about the impending dangers of a “dictatorship of relativism” — a state where truth is denied, morality is defined by subjective desires, authentic tolerance is extinguished, and political power is used to force compliance with the whims of the day.

    Well, we certainly have enough relativism in our culture, and the slide to dictatorship seems to be accelerating.

    Just in the past few weeks we’ve seen more and more Black-Robed Platonic Guardian Rulers on the Courts, er, I mean federal judges, overruling the democratic decisions of legislatures and the people, and redefining marriage.  We’ve seen elected officials foreswearing their oaths of office to uphold the laws, and refusing to defend the authentic definition of marriage.  We’ve seen hysterical and mendacious accounts of proposed religious liberty legislation, even to the point where defenders of the free exercise of religion are compared to Jim Crow racists.  Intolerance from the forces of “tolerance” is becoming the language of the day.

    We need to be clear about what is at the heart of this situation, and what our response must be.  There are several fundamental truths that are being denied by our current culture:

  • Being male and female is an inherent aspect of the human person, they are not arbitrary and irrational concepts.
  • Marriage is ordained by God and by nature to unite a man and woman in a life-long bond that benefits them as persons, and that is the proper context for sexual relations and the procreation and raising of children.
  • A homosexual inclination is contrary to the true meaning and purpose of human sexuality as created by God and enshrined in human nature.
  • Homosexual conduct is always contrary to the will of God and the nature of the human person.
  • Persons with a  homosexual inclination must be treated with full human dignity and cannot be treated with unjust discrimination;  however, their unions cannot be recognized as equivalent to marriage, and their sexual activity cannot be approved.
  • Every human person has the right and obligation to follow their conscience, even when it disagrees with human laws.
  • The budding “dictatorship of relativism” is becoming more and more intolerant of these truths, and will gradually subject those who hold them to criticism, ostracism, and legal penalties.

    In the face of this, we must be ready to resist.

    The starting place for resistance is to recall several key points, most eloquently explained in Henry David Thoreau’s Civil Disobedience, and Vaclav Havel’s The Power of the Powerless:

  • Resistance is a duty of all citizens when faced by injustice.  It is not an “extra-credit” activity.
  • It must be always be grounded in the truth.  It makes no compromise with lies, and always seeks to expose them.
  • It must always be pursued with love and respect.  It is not an excuse for violence and lawlessness.
  • The goal is conversion of heart on the part of those who support injustice, not overbearing their will with power.  It’s message always is “come, join us”, and never “we will force you to agree”.
  • The most important tactic is our willingness to testify to the truth by our words and our actions, and our refusal to cooperate with injustice and lies.
  • Underlying this duty of resistance is an important understanding of the freedom of conscience, and my duty of obedience to the truth rather than to mere human laws.  The government may attempt to coerce my external cooperation with injustice by imposing penalties, fines, and so on.  But no government, and no law, can force me to accept a lie as the truth.

    We cannot have any illusions.  Many, if not most of our family and friends will conform, and will consider us to be strange.  We may be estranged from loved ones.  It will be painful.

    Yes, we will be persecuted — indeed, it has already begun.  It will be a soft persecution, nothing like the hardship  suffered by our brethren in countries like Syria.  Nonetheless,  we will feel the steel fist under the velvet glove.

    Resist.  The power of truth and love cannot be extinguished.

    The Little Sisters of the Poor and the HHS Mandate

    Monday, January 13th, 2014

    [Last week, I was invited to participate in an online debate at U.S. News and World Report, about the lawsuit brought by the Little Sisters of the Poor against the HHS Mandate.  Here is what I contributed.]

    The Little Sisters of the Poor have dedicated their lives to giving witness to their Catholic faith by providing nursing home care for elderly needy people.   They do beautiful work, and are extraordinarily dedicated. You would think our society would cherish this mission and help it succeed.

    Instead, the Administration is forcing the Sisters into a terrible “Sophie’s choice” — violate their faith, or be forced out of business.  The issue is the “HHS Mandate” — the requirement that all employer health insurance policies include contraceptives (including “emergency contraception”, which can cause early abortions) and sterilization.  Catholics, and many others, object to this because those services directly contradict our belief in the sanctity of human life and sexuality.

    The Administration has created a narrow exemption for churches, but not for religious non-profit organizations like the Sisters’ nursing homes.  The best the Administration offers is an “accommodation”.  But to qualify, the Sisters have to file a “permission slip” directing their insurance company  to provide the offensive coverage.

    This is what the Sisters, and other religious organizations, can’t accept.  Filing that “permission slip” means they would be directly cooperating in something forbidden by their faith.  The government doesn’t have the right to force anyone to do that.

    Would anyone think it is acceptable for the government to force the Sisters to sign a form that gives explicit permission for someone to come into their nursing homes to euthanize their patients?  Of course not  — it would be an unthinkable violation of their religious freedom.  And remember, the Sisters are not imposing their beliefs on anyone — their employees, who freely chose to work for them, will still be free to obtain those services elsewhere.   Only the Sisters are being forced to violate their beliefs.

    This is not an abstract legal controversy — the real-world stakes are very high.  For standing up for their faith, the Sisters are facing fines of $100 per day per employee as of January 1.  They employ hundreds of people at their thirty nursing homes.  So do the math — they are looking at fines of over $50 million per year, which would put them out of business.

    The real victims of that would be the poor elderly people the Sisters serve, who would lose such wonderful care.  That would defeat the good intentions of the Affordable Care Act — ensuring health care for all, especially the most vulnerable.  That’s surely not in the public interest.

    Yet the Administration won’t even agree to delay the fines so the Sisters can argue their case on appeal — even though they’re now letting businesses drop health insurance for their employees completely, with no fine at all.   This isn’t public policy, it’s a coercive ideology that considers contraception, sterilization and abortion to be “sacred ground”, and that will brook no dissent from people of faith.

    All of society is enriched when religious groups serve needy people.  Only ideology is served by the Administration’s intolerance against the Little Sisters of the Poor.

    How Much Times Have Changed for Religious Liberty

    Thursday, January 9th, 2014

    Every so often, it’s useful to review some history, and see if we can learn any lessons.

    In 1802, the United States obtained from France what is now the State of Louisiana as part of the famous Louisiana Purchase.  At that time, there was a group of Ursuline Sisters in Louisiana, educating poor girls at a school that still exists to this present day.  They were worried about whether they would be able to continue to own property and carry out their charitable work, once they became part of the United States.  So they wrote to President Thomas Jefferson, seeking assurances about their religious freedom.

    President Jefferson has an undeserved reputation as an enemy of religion, based largely on a misunderstanding of the meaning of his position that the Constitution created a “wall of separation” between church and state.  But he gave no evidence of any hostility or indifference to religion in his response to the Ursulines.  Instead, he wrote:

    I have received, holy sisters, the letter you have written me wherein you express anxiety for the property vested in your institution by the former governments of Louisiana. The principles of the constitution and government of the United States are a sure guarantee to you that it will be preserved to you sacred and inviolate, and that your institution will be permitted to govern itself according to it’s own voluntary rules, without interference from the civil authority. Whatever diversity of shade may appear in the religious opinions of our fellow citizens, the charitable objects of your institution cannot be indifferent to any; and it’s furtherance of the wholesome purposes of society, by training up it’s younger members in the way they should go, cannot fail to ensure it the patronage of the government it is under. Be assured it will meet all the protection which my office can give it.  I salute you, holy sisters, with friendship & respect.

    President Jefferson clearly recognized the fundamental freedom of people to live according to their religious beliefs.  After all, he was the author of the famous Virginia Statute of Religious Freedom.  He understood that government had no business interfering in the practice of religion, or in coercing the consciences of believers.  In fact, he recognized the benefit to society from the good works of religious individuals and institutions.

    Sad to say, it is difficult to imagine the incumbent President writing a similar letter to the present-day Little Sisters of the Poor.  Times have indeed changed.

    The HHS Mandate — Where We Stand, In Plain Language

    Wednesday, January 8th, 2014

    The HHS Mandate continues to make news, so I thought it would be worthwhile to give a quick, plain-language overview of where things stand, and what’s at stake.

    What is the “HHS Mandate”?

    The “HHS mandate” comes from a provision in the “Affordable Care Act” (the “ACA”, which is typically being called “Obamacare”) that requires all employers who offer health insurance to include coverage for “preventive services”.   The term “preventive services” has been defined by the Department of Health and Human Services (“HHS”) to include contraceptive drugs and devices (including “emergency contraception”, which causes early abortions) and sterilization operations.

    The mandate went into effect as of January 1.  As of that day, religious non-profits were faced with a terrible dilemma — sacrifice their religious beliefs and obey, or face the consequences of non-compliance.

    What’s at stake if organizations don’t comply?

    If an employer’s health insurance plan does not provide the coverage required by the HHS Mandate, they are subject to a fine of $100 per day per employee.  An employer with 100 employees would be fined $10,000 every day, or $3.6 million per year.

    There are thousands of religious non-profits in this situation.   Take one small case — the Little Sisters of the Poor (whose case is much in the news these days), who employ hundreds of people at their thirty nursing homes.  They could face fines of over $50 million per year for non-compliance.  Obviously, that would put them and their nursing homes out of business.

    When you look at the even bigger picture, the numbers become staggering.  Catholic Charities reports that their affiliated agencies have over 70,000 employees nationwide.  If all of those agencies were non-compliant, they would risk a total of over $2.5 billion in fines every year.

    Isn’t there an exemption for religious employers?

    There are many exemptions from the entire ACA.  For example, members of religions that oppose insurance benefit programs (e.g., the Amish) do not have to comply with any part of the law.  Over the past few months, the Administration has granted new exemptions, waivers, and delays, due to the mess associated with the new health exchange websites, and all the other chaos involved in implementing such a complicated new law.  So there are lots of people who don’t have to comply with all or part of the ACA.

    As for the HHS Mandate itself, the Administration did give a very narrow exemption from the HHS Mandate for churches.  There is an “accommodation” for some religious non-profit organizations (e.g., Catholic Charities, Catholic hospitals).  There is no exemption for for-profit companies.

    But there’s an important catch involved in the “accommodation” for religious non-profits.  They can only qualify if  they file a form that directs their insurance company  to provide coverage for contraception and sterilization.  This is not “just a form”.  Instead, it’s a “permission slip” — it is the key document that triggers insurance coverage for the offensive services.

    So, regardless of the Administration’s claim that they have “accommodated” religious non-profits, the reality is that faith-based organizations have to become directly involved in immoral behavior — or risk the ruinous fines outlined above.

    What’s going on in court?

    There are dozens of lawsuits across the country challenging the HHS Mandate, on the basis of religious liberty.  The cases rely on the Free Exercise Clause of the First Amendment to the U.S. Constitution, and a federal law called the “Religious Freedom Restoration Act”.  These cases are all working their way through the federal courts.

    A number of for-profit businesses have brought lawsuits against the HHS Mandate on the basis of their religious beliefs.  The Supreme Court has agreed to decide cases brought by two businesses (Hobby Lobby and Conestoga Wood).  There are a number of thorny legal issues involved in these cases, including whether corporations have religious liberty rights at all.  The issues will be hotly contested, and many people will file briefs on the case, including the US Bishops, who will support the companies’ position.  The Court will decide the cases by June.

    Many other cases have been brought by religious organizations, including the Archdiocese.   Twenty of these cases have been decided so far, and nineteen have resulted in victories — the courts have held that the “permission slip” form is a violation of their religious liberties.   The Government is appealing their losses, and the Supreme Court will have the final word.   But no decision is expected for at least a year.

    One case that has been in the news was brought by the Little Sisters of the Poor.  They lost in the lower court, but Supreme Court Justice Sotomayor has issued a “stay” — an order that puts the lower court’s decision on hold, so that the Sisters could appeal.  The government has opposed the “stay”, and a decision by the full Supreme Court will determine whether the Sisters will face tens of millions of dollars in fines while they appeal.  But no matter what the Court rules on the “stay”, the Sisters will still have to go back and fight out their case in the lower courts on the merits.

    So what can we do?

    Of course, the most important thing is to pray for the conversion of heart of the President and his Administration, and for the success of the lawsuits against the mandate.  There are lots of prayer resources at the U.S. Bishops’ website.

    We can also take action.  Please contact your Congressional representatives and urge them to support authentic conscience protection, and a full repeal of the mandate.  The quickest way to do that is through the National Committee for a Human Life Amendment’s Action Center.

    An Important Victory for Religious Freedom

    Monday, December 16th, 2013

    An important victory was won today for religious freedom.  In a well-reasoned decision, Judge Brian Cogan of the United States District Court for the Eastern District of New York, issued a permanent injunction barring the enforcement of the HHS Mandate against Catholic agencies in the Archdiocese.

    This is not the final stroke of victory against this iniquitous and repressive mandate, as we might hope.  But as Winston Churchill once said, “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

    The key element in Judge Cogan’s finding was his specific rejection of the Administration’s minimalistic approach to religious liberty.  The Administration continues to operate on the view that religion is a private matter. It apparently believes that any time a person or organization steps into the public square in any way, they leave their religious freedom behind, and can be compelled to conform their every action to secularist rules of behavior and thought.

    Judge Cogan rejected that view.  He rightly found that the HHS Mandate improperly requires church agencies to perform acts that are directly contrary to our Catholic faith — by forcing them to affirmatively endorse and facilitate access to abortion, contraception and sterilization, under penalty of ruinous fines.  The essential quote from the decision:

    [The plaintiffs] have demonstrated that the mandate, despite accommodation, compels them to perform acts that are contrary to their religion… there can be no doubt that the coercive pressure here is substantial…  and the Government has failed to show that the Mandate is the least restrictive means of advancing a compelling governmental interest.

    This is a very important point, and one that should be axiomatic to anyone who believes in ordered liberty.  If religious freedom means anything, it means that the government can’t force people to do things that they believe God has forbidden.  For people of faith, there is a hierarchy of authority, and it is unjust for the government to try to arrogate to itself the ultimate authority over people’s consciences.  Coercion on matters of conscience are a gross violation of human rights.

    Pope Francis has made this point forcefully in Evangelii Gaudium, saying

    “A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism.”  (255)

    This fundamental principle underlies Judge Cogan’s well-reasoned decision.  At some point, one hopes that the Administration will awaken, and recall that there are necessary limits on state power, if a nation, and its people, are to be truly free.

    A Crossroad for Religious Liberty

    Wednesday, November 27th, 2013

    It is becoming increasingly clear that we are reaching a critical point in America, where fundamental questions of religious liberty will be decided.  Decisions will be made by the courts over the next few months and years that will shape the freedom of religion in our nation.

    The Supreme Court has agreed to take two important cases.  Two private employers owned by people who take their Christian faith seriously are challenging the HHS mandate (which requires health insurance plans to cover contraception, including abortion-causing drugs and devices).  The particular legal issues are interesting — the scope of the Free Exercise Clause of the First Amendment, and whether for-profit businesses have rights under the Constitution and the Religious Freedom Restoration Act.  At stake is the ability of religious people to give full expression to their faith, even when they are carrying out commercial activity.

    Other key cases are working their way through the courts.  A decision was just handed down by a federal district court in Pennsylvania, protecting the religious freedom of Catholic institutions that reject the HHS mandate.  This case is but one of many others filed by religious organizations seeking to vindicate their right to give witness to the Gospel, free of morally offensive government regulations.

    Even more important than these particular cases, though, is the underlying debate over the very nature of religious liberty.

    In each of these current court cases, the Administration has taken a very narrow and crabbed position on the scope of religious freedom.  They have essentially said that religious liberty extends to devotional and worship activities, and no further — that it is something exercised on Sunday morning, or in the privacy of our homes, but which must be put aside on Monday morning when people go out to work.  Despite a specific rebuke of this argument by the Supreme Court in 2011 (in the Hosanna Tabor case — see here and here), the Administration continues to try to limit our religious freedom to mere “freedom of worship”.

    There is a growing number of people who agree with the Administration — people who consider themselves “liberal” or “progressive”, but who really are radical secularists who see little or no value in religion in the public square, or who pooh-pooh our concerns about religious freedom.  This editorial from the Times is fairly typical of this point of view. I have experienced this attitude many times in public debates — most recently at a debate I participated in at NYU over the re-definition of marriage — where there was an assumption that religious beliefs were disqualified from even being considered as part of the discussion.

    This is unacceptable.  Our religious beliefs stem from the very core of our being, and are expressed by every aspect of our lives.  They cannot be confined to a narrow scope of the private sphere.  The Gospel is for every aspect of our lives, and we are on a sacred mission to spread it to all.  All of society benefits from the contribution of religious beliefs to the public debate and to the common good.

    We are reaching a critical moment in the debate.  It is timely, then, that we have Pope Francis’ new apostolic exhortation, Evangelii Gaudium, on the New Evangelization.  In this document, the Holy Father gets right to the heart of the our current debate over religious liberty:

    A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism. The respect due to the agnostic or non-believing minority should not be arbitrarily imposed in a way that silences the convictions of the believing majority or ignores the wealth of religious traditions. In the long run, this would feed resentment rather than tolerance and peace. (255)

    Our nation is clearly in danger of moving into a time where religious belief is victimized by this “discrimination and authoritarianism”.   The freedom of all is threatened when the freedom of any is at risk.  We are at a crossroad.