The Alliance Defending Freedom legal service organization assembled panelists to a discussion on March 16 concerning the crucially important case concerning Little Sisters of the Poor and other religious organizations, formally known as Zubik vs. Burwell, which is currently being considered by the Supreme Court. The case was heard on March 23, and concerns the application of the Department of Health and Human Services contraceptive/abortifacient regulation to non-profit organizations. The regulation requires organizations to provide free contraceptives and drugs that induce early abortions (abortifacients) as part of their medical plans, or face ruinous fines. Many persons consider either contraceptives or abortifacients to be sinful, and their provision to be sinful. The Burwell vs. Hobby Lobby decision (2014) was decided in favor of liberty of conscience for closely held for-profit organizations under the provisions of the Religious Freedom Restoration Act of 1993. The case is particularly important, since it involves religious non-profit organizations other than churches and other houses of worship.
The case is also especially contentious. The Religious Freedom Restoration Act is clear that a substantial burden on religious belief must serve a compelling state interest and be applied in the least restrictive way. Although the HHS regulation exempts 1 in 3 corporations and the United States military, and although these services can be readily obtained without employer provision, the Obama Administration has relentlessly pursued religious organizations, appealing initial favorable rulings for religious organizations in district courts through the federal appeals system.
It is impossible to overstate the importance of the case, because it involves the question of whether religious organizations can serve the public according to their own religious standards, as they must do for their service to be religious acts. More generally, it is a question of whether religious organizations can function by religious standards, or whether non-profit organizations can claim a religious conscience, as closely held for-profit corporations can.
It is also difficult to avoid the conclusion that the Obama Administration is seeking to require persons and organizations who have not accepted the sexual revolution to act against their consciences. In this way it can ultimately change their beliefs and commitments, or at a minimum to destroy the Christian sub-culture which has developed in response to secularization. Involved in the lawsuits are Christian colleges and seminaries, the Eternal Word Network broadcasting organization, and religious charitable organizations such as the Little Sisters of the Poor, whose case is perhaps the premier one in the combined case to being heard and considered by the Supreme Court. If these organizations are required to comply with the HHS mandate, they will have the choice of 1) contributing to what their own religious doctrine declares to be sinful, 2) paying ruinous fines, which would quickly bankrupt these organizations, or 3) closing. With the first option, a religious nonprofit might declare itself to be secular and dissociate itself from any church or primary religious body it is affiliated with, but this means that charitable acts cannot be religious acts, denying the free exercise of religion.
Large in the drama of litigation is the death of Associate Justice Antonin Scalia, whose vote was crucial to the 5-4 victory in the Hobby Lobby case. Hobby Lobby should have been a more difficult case, since involved protecting a for-profit organization which, although pervasively religious in its ethos, was claiming a corporate right to freedom from burden on its religious beliefs. Incorporated bodies are indeed “persons” in American jurisprudence, but the American tradition of religious freedom accommodates individuals, and builds arguments to protect religious organizations from the necessity to give individuals free exercise of religion in the religious organizations their faith requires. If there is not a favorable decision in Zubik vs. Burwell, America will be in the odd circumstance of accommodating the religious conscience of closely held for-profit corporations (“S” corporations), but not religious non-profits. Yet given the fierce polemic of the secular left against liberty of conscience in sexual matters, and its apparent ambition, acting through the Obama Administration, to destroy the Christian subculture, such an outcome is entirely within the realm of possibility.
Panelists at the ADF presentation included Matthew S. Bowman, Senior Counsel of the Alliance Defending Freedom, Gregory S. Baylor, Senior Counsel of the Alliance Defending Freedom and Director of the Center for Religious Schools, Helen Alvare, Professor at the George Mason University School of Law, and Founder of Women Speak for Themselves, and Catherine Szeltner, a reporter and producer with the Eternal Word Network, a Catholic broadcasting network.
Matthew Bowman began the panel discussion by noting that in Zubik vs. Burwell, several Evangelical colleges and Roman Catholic organizations are involved. Before the passage of the Affordable Care Act (Obamacare), there were attempts to require organizations to include coverage of contraception and abortifacients in their medical plans, but none of these were successful. Neither contraception nor abortifacients were mentioned in the ACA, which is the legal basis for the HHS contraceptive/abortifacient regulation.
Instead, the Department of Health and Human Services relied on an opinion of the Institute of Medicine that contraceptives and abortifacients are a necessary measure of preventative health care. As Prof. Alvare has noted in the past, the actual panel was “a stacked panel of abortion advocates.” Bowman said that the logic of requiring compliance with the mandate is that no one is being forced to use contraception or abortifacients, that their use is good for women, and will prevent “inequality.” However, the mandate was not imposed on all organizations. Plans which were “grandfathered,” which experience no change in line with President Obama’s claim that “if you like your health insurance, you can keep it” are not affected, and churches, which are judged to serve primarily persons who object to contraception and abortion, were exempted. All other organizations, including religious non-profit organizations, were required to comply with the mandate, i.e., to pay for contraceptives and abortifacients in their medical plans.
Early in 2012, once the mandate was announced, there were numerous protests from religious organizations holding that compliance with the mandate required them to violate their teachings. Bowman noted that this was turned into an election year issue, with supporters of the mandate maintaining that opposition to the mandate amounted to a “war on women” (although the government could pay for contraceptives and abortifacients itself if it thought the matter that important). Religious organizations were given a “safe harbor” of one year, but ultimately would have to comply with the mandate. Although an accommodation was announced for objecting organizations, it involves filling out a form that begins a government process of supplying contraceptive/abortifacient coverage, thus involving the organizations in the provision of these goods.
Bowman noted that this is different from a simple exemption from the mandate, which was given to churches. Even the March for Life, he pointed out, not being a specifically religious organization serving primarily people of its own religious belief, was included in the mandate. The district court decision in the first case brought said that the Religious Freedom Restoration Act of 1993 (RFRA) precluded the mandate being applied to objecting organizations. Bowman noted that generally the RFRA claim prevailed with many of the suits brought at the district court level, but these cases were often lost upon appeal by the Obama Administration. He further asserted that claims that religious organizations are acting to prevent their non-religious or dissident employees from receiving contraceptives or abortifacients are plainly false; these goods could be gotten from the health care exchanges, as the administration is enthusiastic to say with other medical goods and services. It might be added that contraceptives are readily and cheaply available over the counter at many stores.
Professor Alvare said she has spent much time with post-abortive women. She said that the sexual revolution immiserates women, and the government is “trying to silence speech” of those saying that immiseration of women is occurring because of the sexual revolution. She indicated that institutional acceptance of the sexual revolution in our society has reached the point that now it is only religious institutions which offer conscientious objection to requirements that violate traditional sexual morality. But little data support the claim that pro-contraceptive/abortifacient policies of the type advanced by the HHS mandate have liberated women, she claimed. Government policy and court decisions are strongly in favor of sexual freedom without risks, and are supporting this policy where it conflicts with religious freedom. She said that further, the populations that the government has targeted as particularly in need of contraception and abortion have in fact increased their undesirable behaviors, thus leading to more abortion. She also pointed to research by George Akerlof and Janet Yellen that found that people are much more promiscuous with artificial birth control policies.
Gregory Baylor, representing Evangelical colleges at the Supreme Court, said he has come to love these religious schools. They “integrate their religious convictions into every area of institutional life,” he said. Their health plans should reflect their religious belief, he maintained. These schools also strongly object to not being considered religious by the Obama Administration. They were very successful in their RFRA claims at the district court level, but not on appeal. Three of four cases were lost on appeal. The Eighth Circuit Court of Appeals, however, ruled in favor of Dort College. Baylor said that this disagreement at the appeals court level may have made necessary or contributed to the Supreme Court taking these cases.
Catherine Szeltner of Eternal World Network (EWTN) said that public opinion and the mainstream media have a “strong element” viewing liberty of conscience as “special pleading from generally applicable law.” The U.S. Catholic bishops disagree. Opposition to religious freedom ignores or rejects claims that people cannot act against what they believe to be ultimately right and wrong, or act without reasonable accommodation of their beliefs. A federal appeals court has ruled against EWTN, but stayed effect of the ruling until case is resolved at the level of the Supreme Court. If Supreme Court ultimately decides against EWTN, the network will have to pay $35,000 per day in fines.
Szeltner said that the narrative of the mainstream news media grasps on involves stories saying women should receive contraceptives and abortifacients from employers. But, as noted above, the claim that denial of employer payment for these goods would result in the goods finally being denied is unreasonable. These goods are available through the medical exchanges, or could be paid for by the government if it truly thought these goods essential, as it apparently does not with the actually exempted organizations. This is really a fight to have faith in the public square, Szeltner said.
Alvare said that polls show that people would like to respect religious freedom. Her Women Speak for Themselves Organization challenges mainstream narrative that women want and need contraceptives and abortion inducing drugs. “Why is the government getting on the cheerleading side of contraception?” she asked. Alvare said that traditional Christians should resist being viewed as a weird subculture. Both the Catholic and Protestant populations hold a wide variety of views. Yet sexual traditionalists are viewed by the mainstream media as “yesterday’s news.” The claims of sexual traditionalists are not at all passé, as the government must contend with the fact that 41% of children born out of wedlock face poverty, Alvare said. She noted that religious views were presented favorably by the Supreme Court that ruled in the Wisconsin vs. Yoder case (1972), which established homeschooling as a constitutional right based on the free exercise of religion. But now religious worldviews are often seen as backward by the western world’s elite opinion to which the Supreme Court responds.
Baylor said that Geneva College, which he represents, holds that Christians and their religious institutions have an obligation to God above the state. This claim is now perceived as special pleading. But accommodation has been given to liberty of conscience since the beginning of the republic. Additionally, the medical case in support of contraception is flimsy, he said.
Baylor also said that an analogy needs to be drawn between freedom of speech and freedom of religion. Just as it is recognized that people are free to say what they want regardless of the offense given to others, so people should be free to exercise their religion, regardless of the offense given to others. Believers are not forcing their views on anyone, but rather being required to take action against their consciences. Bowman noted that Tim Cook of the Apple Corporation says he doesn’t want his organization involved in a surveillance state. Therefore, Bowman said, this same liberty of conscience should apply to sexual issues. But it ought to be noted that Apple has opposed liberty of conscience against homosexual liberation in the past.
Szeltner said she is nervous about the future. Will religious institutions be closed because they are being required to violate their consciences? A consistent application of the idea behind liberty of conscience, that one should not under any circumstances take an evil action, would mean that they will be closed, unless government policy changes.
Alvare speculated that if Little Sisters of the Poor lose at the Supreme Court, there may be an exemption for religious organizations by executive order, just as Indians in Oregon were accommodated in state law after they lost their free exercise claim at the Supreme Court in the Employment Division vs. Smith decision (1990). The HHS mandate requires that religious institutions be something other than what they are, organizations committed to the service of God. The government should respect their right to be different. But the Supreme Court is, she said, very ideological on sex, protecting an absolute right to sexual choice for individuals against the consequences of sexual self-determination. Other considerations which stand in the way are not respected.
The case is crucially important, one of the most important in our generation, since if religious organizations can be successfully coerced into violating their own religious doctrine, which is their reason for being, then they have been secularized, whether they continue to claim a religious character or not. Religious educational and social services are not primarily educational and social services, but exercises of religion, teaching, broadcasting, publishing, or healing as religious acts, or as Christians would say, in obedience to Christ. They cannot be simultaneously irreligious in disobeying the commands of their faith (or again, as Christians would say, the commands of God). No one is being forced to work in a religious organization, or to accept religious educational or social services; they are entirely voluntary. And so it is not the individual members of these organizations, nor the recipients of their services, who are being imposed on, but the organizations themselves. The government will have effectively said that religious educational and social service, which are religious acts (or exercises of religion, as the Constitution would have it), are no longer legal in this country.
In the sad eventuality that the Little Sisters do not prevail, whether by an adverse decision, split decision, or an adverse decision in a new Supreme Court (after the next election), then it will be the religious and moral responsibility of the objecting organizations not to comply with the mandate. This is the logic of conscientious objection, that one absolutely cannot take an evil action. If compliance merely means taking action distasteful or action thought unwise, no objection should have been raised in the first place. We all have to do things we don’t want to do. And for many nonreligious or nominally religious citizens, this is the bottom line. But the fact that religious precepts are unimportant to them does not make them unimportant to millions of their fellow Americans, for whom obeying God is the most important thing in life. The government could easily accommodate religious conscientious objection without inconveniencing unbelievers, as it often has in the past. But the present government has an adversary moral vision, one that holds traditional sexual morality to be oppressive. It is not, however, the purpose of the state to envision and enforce its idea of the good life, but to protect conscience, which claims a transcendent basis for its requirements.
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