FRC Blog

Supreme Court Oral Argument Leaves a Question Mark Hanging Over Little Sisters

by Travis Weber

March 23, 2016

My client would love to be a conscientious objector. The government insists they be a conscientious collaborator.”

That line, offered by attorney and former Solicitor General Paul Clement as he closed his argument for the Little Sisters today, perhaps best captures this saga of cases in one sentence.

Zubik v. Burwell, the case for which oral argument was held today, is consolidated with six other cases (including Little Sisters of the Poor) composed of dozens of plaintiffs. The ruling in this case stands to impact scores more of religiously-affiliated universities, organizations, and individuals who object to being forced by the HHS mandate to violate their consciences by providing contraceptive services that cause abortions. These challengers have brought claims under the Religious Freedom Restoration Act (RFRA), which, if they can show they have a sincere religious belief that has been substantially burdened, requires the government to show it has a compelling interest advanced by the HHS mandate and is pursuing that interest in the least restrictive way possible.

The argument heated up quickly, as Paul Clement, arguing for some of the religious challengers, was vigorously questioned by Justices Sotomayor, Ginsburg, and Kagan about how government could continue to function if religious actors were permitted to consistently object to regulatory schemes like the HHS mandate. Clement skillfully parried away their questions: “My clients do not object to objecting,” he observed, but they do have a problem with being forced to violate their religion by a process the government calls an accommodation. Just because the government “call[s] it an accommodation doesn’t mean its immune from RFRA analysis,” Clement noted.

Noel Francisco, arguing for some other challengers, honed in on the fact that churches were already exempted under the HHS mandate. The existence of other such exemptions and whether they showed that the government did not actually have a compelling interest in imposing the HHS mandate’s requirement on the Little Sisters was a recurring theme throughout the argument. If the government has such a compelling interest, why not exempt the Little Sisters and others as it has exempted churches and large corporations?

When Solicitor General Donald Verrilli arose to argue for the government, Justice Kennedy showed surprising quickness in probing him about whether the government concedes that the exercise of religion was substantially burdened in this case. Verrilli conceded the exercise was sincere, but not substantially burdened. Why not? In the government’s view, the religious organizations are provided with a way to extricate themselves since the government authorizes the insurer to provide coverage. The religious groups can send the government an “exempting” document, and the government then authorizes the coverage. But the government needs the exempting document to authorize the coverage! The exempting document triggers acts against which the religious organizations have the most profound of objections. Sounds like an “authorizing document” to me.

The existence of other exemptions under the HHS mandate (showing that the government does not clearly have a compelling interest) and availability of other coverage (showing that the government is not working through the least restrictive means) were recurring themes throughout the argument. The government did not make a strong showing on these issues. At one point, Verrilli was stuck arguing that other alternatives to coverage, like the exchanges, do not provide the same coverage that is provided through the religious challengers’ insurers. Thus, in the government’s view, there were no less restrictive alternatives. It was almost as if the government had to concede the ineffectiveness of Obamacare as part of its argument before the Court today.

Also of note today were several references by the justices and advocates to the views of Professor Doug Laycock on whether RFRA supports the claims in this case. Nevertheless, as Paul Clement noted in closing, when Professor Laycock’s view is accurately restated, it supports the religious claims here.

One of the heartening things about today was seeing Justice Kennedy show support for the idea that if a religious belief is sincere (in this case, if the challengers believe the law makes them complicit in evil) and if there is a significant financial penalty attached to not following that law, there clearly is a substantial burden on religion. Justice Alito most vigorously disputed Verrilli’s arguments from the bench this morning, while Chief Justice Roberts also consistently hammered the government’s arguments. The Chief aptly characterized the government as “hijacking” the religious organizations’ insurance agreements to do its bidding. Justice Kennedy also observed the government was trying to “hijack the plans.”

Justice Thomas, along with these three, are likely votes for the religious challengers. Justices Kagan, Sotomayor, and Ginsburg will likely rule for the government, but a glimmer of hope remains: Justice Sotomayor appeared sympathetic to religious freedom in the context of a military conscientious objector. Justice Breyer appeared to struggle with which way to rule; if he can find sympathy for the position of the Little Sisters, the Court will offer relief to them later this spring. If the result is 4-4, however, the lower court decisions (many of which are negative) will stand until the issue is taken up again by the Supreme Court. While an outright win at this point is ideal, either of those results would be preferable to five justices ruling against the challengers here.

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Backpage’s (Rightful) Front Page Humiliation

by Rob Schwarzwalder

March 17, 2016

This afternoon, the U.S. Senate voted “to hold the classified advertising website Backpage.com in civil contempt for failing to comply with a congressional subpoena into how it screens ads for possible sex trafficking. The vote was 96-0.” The vote will force Backpage to cooperate with a previously-issued Senate panel subpoena and account for its facilitation of sex trafficking.

The issue at stake is nothing less than basic decency and the commodification of human lives – in many cases, teenagers and even small children. As Senate Majority Leader McConnell said today on the floor of the Upper Chamber: “The Homeland Security Committee’s Permanent Subcommittee on Investigations … probe has revealed how trafficking has flourished in the age of the Internet. It’s also revealed how many cases of sex-trafficking — including cases involving children — have been linked to one website in particular: Backpage.com. One national group that tracks the issue has told the subcommittee this: nearly three-quarters of all suspected child-sex trafficking reports it receives from the public through its tip line have a connection to Backpage.”

As Portman and McCaskill said in a joint statement, “Backpage.com’s ongoing obstruction of this investigation will not be tolerated. Our goal is to uncover how sex traffickers get away with selling countless victims through online black markets, so that Congress can devise legislation to more effectively combat this heart-breaking crime … With estimated annual revenues of more than $150 million, Backpage is a market leader in commercial-sex advertising and has been linked to hundreds of reported cases of sex trafficking, including trafficking of children. In a bipartisan staff report issued two months ago, the Subcommittee revealed evidence that Backpage has had a practice of editing advertisements before they are posted by deleting certain words and phrases, which likely served to conceal illegality. The subpoena seeks more information about that practice, but Backpage has refused to turn over documents.”

Now a day of reckoning will come. All decent people can look forward to it, not just so that Backpage will be held up to the public disdain it deserves but so that, through appropriate legislative action, it’s conduit for the selling and buying of human beings will end.

To learn more about human trafficking, watch a presentation by the Director of FRC’s Center for Human Dignity, Arina Grossu, on “The Link Between Pornography, Sex Trafficking, and Abortion,” and read “Modern Slavery: How to Fight Human Trafficking in Your Community,” by attorney J. Robert Flores, who has represented several anti-human trafficking organizations and served as Administrator of the U.S. Justice Department’s Office of Juvenile Justice and Delinquency Prevention in the administration of President George W. Bush.

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Social Conservative Review: An Insider’s Guide to Pro-Family News March 17, 2016

by Rob Schwarzwalder

March 17, 2016

Click here to subscribe to the Social Conservative Review


At last: The Obama State Department has finally and formally acknowledged that ISIS is committing genocide in the Middle East.  This follows a unanimous vote (383-0) in the House of Representatives on March 14 to “(declare) the Islamic State is committing genocide against Christians and other religious minorities in the Middle East.”

FRC has spoken about this issue for months, even years.  FRC President Tony Perkins, FRC Senior Fellow and former U.S. Ambassador to the U.N. Commission on Human Right Ken Blackwell, the Director of our Center for Religious Liberty, international human rights law expert Travis Weber, J.D., and this author have all called for official U.S. recognition of the fact that ISIS, or “Daesh” as it calls itself, is committing genocide against Christians and other religious groups in the areas where it inflicts itself upon their historic residents.

Daesh is responsible for genocide against groups in areas under its control,” said Secretary of State John Kerry today, “including Yezidis, Christians, and Shia Muslims. Daesh is genocidal by self-proclamation, by ideology, and by actions – in what it says, what it believes, and what it does. Daesh is also responsible for crimes against humanity and ethnic cleansing directed at these same groups and in some cases also against Sunni Muslims, Kurds, and other minorities.”

Genocide is defined as “a crime of intentional destruction of a national, ethnic, racial and religious group, in whole or in part” in the 1948 U.N. Convention for the Prevention and Punishment of the Crime of Genocide.  That genocide is occurring is undeniable, especially in light of a new, authoritative, 300-page report issued by the Knights of Columbus and In Defense of Christians  that documents “over a thousand instances of ISIS’s deliberately massacring, killing, torturing, enslaving, kidnapping, or raping Christians.”

In addition to the atrocities ISIS commits as a matter of routine, earlier this week “Chaldean Catholic bishop Antoine Audo said there were about 1.5 million Christians in the country before the start of the conflict in March 2011. ‘I think now there are maybe 500,000. Two-thirds have left mainly due to the insecurity,’ he told reporters in Geneva. In the embattled northern city of Aleppo, the exodus was even greater, he said, with only around 40,000 of its once 160,000-strong Christian community remaining.”

As Tony Perkins said upon the Administration’s long-overdue recognition of ISIS’s genocidal cruelty, “Now words need to be backed up with actions so that the international community not only speaks with one voice but works to isolate ISIS and those facilitating their reign of terror. Additionally, we call upon Christians to support those non-governmental organizations that are working to provide sanctuary and relief to our brothers and sisters in Christ as well as other religious minorities.”

Tragically, ISIS is a metastasizing entity.  In addition to controlling large swaths of Syria and Iraq, ISIS also occupies areas in Nigeria, Afghanistan, and Libya.  ISIS’s plans are audacious, nothing less than world conquest.

What steps the Obama Administration now takes will be critical to the defeat of ISIS and the protection of those it has targeted for annihilation.  Christians should pray that our President and his national security team act wisely, decisively, and boldly to eradicate ISIS, not just “degrade” it.  For the suffering Christians and other religious minorities, time is running out.   

Sincerely,
Robert F. Schwarzwalder, Jr.
Senior Vice-President
Family Research Council

P.S. Be sure to join us at noon on April 6th for our forum, “Religious Liberty Around the World: Where Do We Stand as of Spring 2016?”  The event will feature remarks by some of the country’s leading advocates for international religious freedom, including former Congressman Frank Wolf (21st Century Wilberforce Initiative), Dr. Thomas Farr (Director of the Religious Freedom Project at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University), Tina Ramirez (the Founder and Executive Director of Hardwired Global), and Pervez Rafique (President of Bleeding for Belief, an organization working to stop religious persecution in Pakistan).  Join us in person or register, at no charge, to watch online.


Religious Liberty

Free to Believe” –

International Religious freedom-

Military Religious Freedom

Religious Liberty in the public square

 

Life

Abortion

Fetal Pain

Adoption

Healthcare conscience

 

Family

Family Economics

Marriage

Human Sexuality (Homosexual/ gender issues)

Human Trafficking

Pornography

Welfare Reform

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Governor Intends to Ignore Same-Sex Marriage Ruling—Will He Be Chastised?

by Travis Weber

March 11, 2016

A federal district judge in Puerto Rico recently ruled that Obergefell v. Hodges does not overturn Puerto Rico’s marriage laws because the constitutional protections at issue in that case do not apply to an unincorporated territory like Puerto Rico the same way they do to the states.

Puerto Rico’s governor responded by indicating he will not abide by the ruling: “I will respect what has been determined by higher hierarchy courts that, fortunately, order a very different procedure… The fundamental right to equal marriage has been validated and ordered by the federal Supreme Court and by the appeals court in Boston.”

Predictably, the ruling is being dismissed, and the governor’s defiance celebrated, by same-sex marriage advocates.

But according to these same advocates, federal court orders are supposed to be sacrosanct ground, as we were told last year when the Alabama Supreme Court differed from federal courts in articulating the requirements of the Constitution on this issue.

Merits of this ruling (which is likely to be appealed) aside, the more pressing question is: Would those celebrating such independent judgment by the executive branch in this case also celebrate it if the shoe was on the other foot?

Idaho’s governor certainly was not celebrated in such an instance, and he didn’t even flatly disregard the ruling in that case, but merely disagreed with and appealed it.

Indeed, when federal district courts consistently ruled in favor of same-sex marriage over the last several years, their rulings were celebrated and regarded as law by same-sex marriage supporters. If so, why is the recent federal court decision out of Puerto Rico not law?

Our entire legal system depends upon neutrality and objectivity. When society decides to compromise those qualities for the sake of a controversial issue whose advocates aggressively insist on their agenda, we collectively imperil ourselves.

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A Win for Religious Freedom in the Military

by Travis Weber

March 9, 2016

A federal judge notched a win for religious freedom last week by ruling in favor of a Sikh Army captain requesting an exemption to grow his hair and beard for religious reasons. This ruling is a positive reaffirmation of RFRA’s application in the military context, and is proof that the statute can be used to protect service-members’ rights while not impinging on the unique needs of the military.

In response to Captain Singh’s exemption request, the Army directed him to go through several batteries of tests with his gas mask and helmet on to determine how they would perform while fitted over his head and facial hair. This order was unique, however, for the Army regularly grants beard exemptions for all sorts of reasons without requiring the testing it directed Captain Singh to go through. Moreover, around the same time the Army was imposing these onerous burdens on Captain Singh, he successfully completed a previously scheduled standard gas mask test with other soldiers from his unit.

It was obvious to anyone that the Army was making Captain Singh jump through hoops, and the Court granted his request to stop the Army from making these burdensome demands on him after concluding his RFRA claim would likely succeed. He had shown a sincere belief that was substantially burdened by the testing, and while the Court recognized the Army “unquestionably has a compelling interest in ensuring the health and safety of military personnel,” the specific tests required of Captain Singh are not the least restrictive means of accomplishing this interest. As the Court noted, “[i]ndeed, conducting or commissioning a study of the efficacy of helmets and gas masks for soldiers donning a variety of unshorn hair, beards, and/or head coverings, which does not target one particular Sikh soldier merely because of his request for a religious accommodation, would be more effective in furthering the government’s compelling interest in ensuring the health and safety of its soldiers.” The Court also observed that “medical exceptions and ‘relaxed grooming standards’ are granted without such specialized information” as the Army claimed it needed from Captain Singh.

On balance, this ruling reaffirms the principle that robust religious exercise for those of all faiths can occur in the military consistent with the unique demands it must impose on its members in order to maintain readiness and accomplish its mission.

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Social Conservative Review: An Insider’s Guide to Pro-Family News March 3, 2016

by Rob Schwarzwalder

March 3, 2016

Click here to subscribe to the Social Conservative Review


Yesterday, the Supreme Court heard oral arguments on Texas’s abortion clinic regulations. This was the Court’s most important hearing on abortion in many years, perhaps decades.

The Director of FRC’s Center for Religious Liberty, Arina Grossu, and our Senior Fellow for Legal Studies, Cathy Ruse, J.D.(formerly chief counsel to the House Judiciary Subcommittee on the Constitution), were in the Court during the hearing to gain first-hand insight into the justices’ thinking. Their presence was especially important as, with our friends at the American Center for Law and Justice, FRC has filed an amicus brief in the case (Women’s Whole Health v. Hellerstadt) documenting that abortion is anything but a safe procedure for women; Texas Solicitor General Scott Keller cited from our brief in his arguments supporting his state’s commonsense abortion clinic rules.

As Arina explained recently, “The Texas law proposes that fundamental health and safety standards be applied to abortion facilities, standards that are currently applied to ambulatory surgical centers. These regulations are designed to safeguard against unsanitary conditions, inferior equipment, and the employment of unsuitable and untrained personnel in abortion facilities. Second, it requires that abortionists have admitting privileges to a hospital within 30 miles of the abortion facility when something goes wrong with the abortion and the woman needs to be hospitalized (as is often the case).”

We don’t know whether or not the Court will rule in favor of women’s health. Much will hinge on the unpredictable Justice Anthony Kennedy. As Cathy said after listening to Justice Kennedy’s exchanges with the attorneys arguing the case, “No one hearing arguments today could come away with a clear idea of how Justice Kennedy is likely to vote. Even when he is very vocal, Kennedy’s comments and questions serve as poor predictors of his votes.”

We can be encouraged that we have allies in people like Speaker Paul Ryan (R-Wisc), who made a surprise and very welcome appearance at a pro-life rally in front of the Court during Wednesday’s hearing. “We are the pro-life generation and we are here to stand for life,” he said. FRC is grateful for his leadership.

Political leaders, especially those running for President, should take note of the new survey conducted for FRC by the respected WPA Opinion Research firm, which found, “For possibly the first time, large majorities of Democrats and Republicans say that the direction of the U.S. Supreme Court will be a ‘very important’ determining factor in how they vote for president in the fall, according to a new poll (which) found that 71 percent of Republican voters believe the future of the court will be somewhat or very important to their vote. And 63 percent of Democrats agree.”

Commenting on the poll, FRC President Tony Perkins noted that “Justice Scalia’s replacement may very well be the deciding vote on major cases involving religious liberty, state abortion laws, gun control, and immigration. With so much at stake, the American people should be allowed to decide in November who picks the next Supreme Court justice.”

Finally, yesterday the House Select Investigative Panel on Infant Lives held its first hearing on the horrific organ harvesting of the corpses of aborted unborn children conducted by Planned Parenthood and its contractors. As U.S. Rep. Marsha Blackburn (R-Tenn), chairwoman of the Panel, said in her opening remarks, “Last summer’s videos revealed that something very troubling that is going on related to fetal tissue and research. The weak, the vulnerable, those with no voice — harvested and sold — there is something going on, something that deserves investigating and that demands our best moral and ethical thinking.”

The unborn child is a person, a baby, a being made in the image and likeness of God. She and her mother deserve better than the predation of the abortion industry. That’s why FRC works so hard to protect the unborn in law and supports policies that affirm and support their mothers. Thank you, as ever, for standing with us.   

Sincerely,
Robert F. Schwarzwalder, Jr.
Senior Vice-President
Family Research Council

P.S. To learn more about the upcoming Supreme Court nomination battle, read the new paper by FRC’s Senior Fellow Chris Gacek, J.D., Ph.D., “A Supreme Decision: Filling Scalia’s Seat.”


Religious Liberty

Free to Believe” –

International Religious freedom-

 

Military Religious Freedom

Religious Liberty in the public square

 

Life

Abortion

Abstinence Education

Adoption

Bioethics

 

Family

Family Economics

Marriage

Human Sexuality (Homosexual/ gender issues)

Human Trafficking

Pornography

Welfare Reform

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The Dirty Dozen” 2016: The 12 Leading Facilitators of Sexual Exploitation

by Rob Schwarzwalder

February 25, 2016

FRC is proud to be allied with the National Center on Sexual Exploitation and a member of NCOSE’s Coalition to End Sexual Exploitation. The Coalition’s mission is “focused on bringing a variety of people together to solve and end the complex social issue of sexual exploitation and its associated companion – pornography.” We’re grateful to be part of this essential effort.

Today NCOSE announced its annual “Dirty Dozen” list of the companies that foster the intersection of “sex trafficking, violence against women, child abuse, addiction and other forms of exploitation.”

Thankfully, one of the companies listed, Starwood Hotels and Resorts, has now been removed from the Dirty Dozen list because “on February 10, 2016 (Starwood announced) that they officially changed their policies regarding their distribution of pornography on January 1, 2016 and that it will be removed from all 1,270 properties worldwide.”

Sadly, perhaps the most noteworthy member of the Dirty Dozen list is none other than the U.S. Department of Justice, which is on the list for the fourth year in a row. According to NCOSE, “Federal law prohibits distribution of obscene adult pornography on the Internet, on cable/satellite TV, on hotel/motel TV, in retail shops, through the mail, and by common carrier. The U.S. Supreme Court has also repeatedly upheld obscenity laws against First Amendment challenges, explaining that obscenity is not protected speech. Even so, the U.S. Department of Justice (DOJ) refuses to enforce existing federal obscenity laws. From the time Obama took office in 2008, no enforcement actions against illegal obscenity have been initiated by DOJ, and in 2011 former Attorney General Eric Holder dismantled the Obscenity Prosecution Task Force.”

Two former FRC interns, Dani Bianculli, J.D. and Haley Halverson, now serve at NCOSE as Executive Director of the Law Center and Director of Communications, respectively. We’re proud of the contributions Dani and Haley and NCOSE’s courageous CEO and President, Pat Trueman, have made and continue to make in defending women, children, and young men from the deviant exploitation that is at the center of the pornography and trafficking industries. We join with them in seeking to advance a culture where human dignity is protected by law and honored by our society and the businesses operating therein.

Be sure to watch the recent lecture by the Director of FRC’s Center for Human Dignity, Arina Grossu, on “The Link Between Pornography, Sex Trafficking, and Abortion” and read our Issue Analysis, “Daddy’s Girl: How Fatherlessness Impacts Early Sexual Activity, Teen Pregnancy, and Sexual Abuse.”

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Dancing for Joy at 106 and “Loving Jesus Christ”

by Rob Schwarzwalder

February 23, 2016

A 106 year-old black woman has made international news for her unguarded joy at meeting the President.

Virginia McLaurin, who was born during the administration of William Howard Taft, fulfilled a dream in meeting the nation’s first African-American chief executive.

A black president,” she exclaimed, “and his black wife!” Mrs. McLaurin ran/danced as she saw the President and Mrs. Obama. The First Couple, moved and delighted, were most gracious to this dear woman.

As reported by a local NBC affiliate, “In her 104 years, Mrs. McLaurin worked as a housekeeper, nanny and seamstress. She first married at 14 and was widowed at 17.”

For the past 20 years, she has “been volunteering as a foster grandparent” to special needs children at Sharpe Health School in Washington, D.C.“‘I love the kids,’ she says. ‘You ought to hear them in the morning when I come in and they say, “Grandma! Grandma!” and I say, “I’m here, I’m here”.’”

In 2014, she wrote Mr. Obama, “I’ve never met a President. I didn’t think I would live to see a Colored President because I was born in the South and didn’t think it would happen. I am so happy and I would love to meet you and your family if I could. I remember the times before President Hoover. I remember when we didn’t have any electricity. I had a kerosene lamp. I remember the first car model Ford. My husband was in the Army. I lost my husband in 1941. I’ve been in DC ever since. I was living here when Martin Luther King was killed. I know you are a busy man, but I wish I could meet you. I could come to your house to make things easier. I pray to the Lord that I would be able to meet you one day.”

The Lord answered that prayer. And that points to something about this lovely woman that deserves particular mention: her deep Christian faith: “One of my secrets for longevity is reading the Bible and praying daily, loving Jesus Christ, and my fellow man. There’s no one that I don’t like; I love everybody.”

We can hope that Mrs. McLaurin continues to bring light and joy to many more people for years to come. And when the Lord calls her home, it’s delightful to think of her dancing into His presence, even as she did with the President and First Lady of the United States.

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Adopted or Biological, Children Are a Joyous, Disruptive Mystery

by Rob Schwarzwalder

February 19, 2016

Jamie Hughes has written a tender but candid piece on adoption on the valuable Her.Meneutics website. With her husband, she has adopted two sons.

My wife and I also adopted sons, twin boys, when they were three months old. We had prayed for twins for 16 years and, in God’s remarkable kindness, got them, although not in the biological way we initially anticipated. Our boys are now 18 and our daughter, adopted when she was also an infant, turns 13 next month.

What is striking to me about Hughes’ article is that practically everything she describes concerning the adjustments of having young adopted children could be said about having young children, period. None of us knows if our children, biological or adopted, will have exceptional physical, mental, or emotional needs. No one with a small child is unaccustomed to sleepless nights, meal upon meal of packaged food, or disruptions that are frequent, often unnerving, and, in aggregate, wholly draining. Young children are the sworn enemies of efficiency, privacy, predictability, order, and quiet. Always have been, always will be, adopted or biological.

The point of what I’m writing is that nothing Hughes mentions is unique to adoptive parents except, perhaps, various types of attachment disorder in some children and the occasional untoward comment from a tactless observer (“Are they yours?”). For example, as Hughes notes, “There are … holes in the boys’ childhoods, in my understanding of them and how they work, even in their medical histories.” That’s true — but it’s also true for all parents, to one degree or another. Both of my grandfathers died before I was born. I’ve never seen anything about their medical histories and know them only through a handful of anecdotes. I knew my grandmothers barely before each of them died. My many aunts and uncles and some cousins have passed away from a host of causes.

In other words, children provide no guarantees concerning their health, intellectual capacities, motor skills, perception challenges, or any of a host of other things. Adoptive or biological, our children come suddenly into our lives and unmask our selfishness, our self-preoccupation, and our previously unknown resilience in the face of sleep-deprivation and emotional wornness. They awaken in us a fierce love and loyalty that can be arresting in its intensity. They are fallen and finite, filling our lives with joy, grief, regret, and gratitude. They are human, and they are ours.

Jamie Hughes is a lovely Christian woman whose account of her experience with her kids is beautiful. But her experiences are common to all parents, to all mothers and fathers who can hug a child and say, inwardly and with unspeakable contentment, “Mine.” 

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11th Circuit Rejects Religious Liberty in Favor of Government-Mandated Contraception

by Travis Weber

February 19, 2016

In yesterday’s opinion in EWTN v. Burwell, the 11th Circuit Court of Appeals caused double the damage by rejecting a clear religious liberty claim and trying to save the HHS contraception mandate at the same time. This is not the court’s job. It was supposed to objectively analyze a Religious Freedom Restoration Act (RFRA) claim, which it not only rejected in an attempt to set religious liberty back in time, but then jumped through hoops to justify the government’s contraception and abortion-related services scheme which wasn’t even passed by Congress and instead was imposed by executive fiat.

In its opinion, the 11th Circuit recognized:

We accept that the plaintiffs truly believe that triggering contraceptive coverage or being complicit in a system providing contraceptive coverage violates their religious beliefs.”

However, the court then amazingly concluded:

But our objective inquiry leads us to conclude that the government has not put plaintiffs to the choice of violating their religious beliefs or facing a significant penalty. We hold there is no substantial burden.”

The court now looks foolish. It already admitted religious liberty was violated in this case, and is now left trying to claim there is no “significant penalty” when the government threatens religious actors with thousands of dollars in fines if they don’t violate their consciences.

The court continues:

The ACA and the HRSA guidelines—not the opt out—are … the “linchpins” of the contraceptive mandate because they entitle women who are plan participants and beneficiaries covered by group health insurance plans to contraceptive coverage without cost sharing. In other words, women are entitled to contraceptive coverage regardless of their employers’ action (or lack of action) with respect to seeking an accommodation.”

If this is so true, why the need to involve EWTN in this scheme? Why not just provide the coverage directly? The government seems to need (or want) EWTN and others to be involved themselves.

In sum, the court acknowledged that the HHS contraception mandate “accommodation” forces EWTN to violate its religious beliefs or pay government penalties, but still found no substantial burden on religious freedom. This is nonsense. Surrendering your religious beliefs in order to avoid government penalties is the definition of “substantial burden” if there ever was one. Hopefully the Supreme Court will get these cases right when it considers them in the next few months, and settle once and for all that the government is substantially burdening religious exercise by threatening thousands of dollars in fines against religious actors if they don’t violate their consciences, and has no need to even involve them at all in providing drugs and services they believe cause abortions, but can leave religious groups out of the process entirely as it already does for other types of organizations.

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