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Affront to Freedom (3983)

COMMENTARY

06/19/2014 Comments (21)
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On June 17, U.S. district court Judge Callie Granade of Mobile, Ala., struck a blow against the free-exercise rights of faithful Catholics when she issued an opinion that denied EWTN Global Catholic Network protection from the Health and Human Services’ contraceptive mandate.

Granade’s decision reflects a misunderstanding of EWTN’s primary objection to the mandate, which requires the Catholic media network to provide contraception, sterilization and abortion-inducing drugs in its employee health plan. But this ruling also highlights the broad confusion in the courts and our culture regarding the meaning and purpose of conscience rights and the proper interpretation of laws enacted to protect religious freedom.

“The fact that the court has dismissed the serious issues of conscience and religious freedom that EWTN has raised is very troubling,” said Michael Warsaw, chairman and CEO of EWTN, a global religious media network that includes the National Catholic Register.

“As an organization that was founded to uphold the teachings of the Catholic Church, we do not believe that contraception, abortion-inducing drugs and voluntary sterilization should be defined as health care. We simply cannot facilitate these immoral practices.”

EWTN immediately filed an appeal with the 11th Circuit Court of Appeals, seeking a temporary injunction until a higher court resolves its legal challenge. Without a reprieve from the 11th Circuit, EWTN will be forced to comply with the mandate by a July 1 deadline — or face crippling fines.

EWTN filed its original lawsuit in February 2012, but it was dismissed on technical grounds. The current lawsuit was filed in October 2013, and the state of Alabama, through Attorney General Luther Strange, joined EWTN as a co-plaintiff.

Granade’s June 17 ruling plainly states why EWTN filed the lawsuit against the mandate: “EWTN does not believe it can comply with the mandate without violating its religious beliefs.”

But the judge concluded that EWTN’s objections have been properly addressed by the Obama administration’s “accommodation” for religious nonprofits that oppose the mandate and were not exempted by the government. The judge reached that conclusion through a misreading of EWTN’s specific religious objections — and then applied her own assessment of the soundness of that position.

This approach highlights a fundamental misunderstanding of what the accommodation actually demands of EWTN, but it also shows that the judge goes too far in issuing an evaluation of the religious foundations of the plaintiff’s argument.

According to Granade, the accommodation allows EWTN to “opt out of the mandate by signing a short form objecting to the use of contraceptives and delivering that form to an appropriate third-party administrator — who would then be responsible for ensuring that the objecting organization’s employees would receive contraceptive coverage at no cost to the organization.”

The court stated that EWTN primarily objects to a third-party administrator taking up the responsibility of providing the mandated services. In fact, EWTN objects to its forced complicity in what the third-party administrator will be doing.

Further, as a self-insured employer, EWTN directly funds the third-party administrator that manages its health plan. Thus, EWTN cannot just “opt out” of its responsibility for compliance with the mandate.

But there is a second problem: Even if the Catholic network successfully located a third-party administrator (TPA) to provide the services — and even if that TPA agreed to cover all the costs associated with the mandate’s provisions without any reimbursement from EWTN (an unlikely possibility) — EWTN’s signature on the form still triggers the coverage of the services.

“There is a very obvious error” in the June 17 ruling, stated Lori Windham, general counsel for the Becket Fund for Religious Liberty, a public interest group that represents EWTN in its legal challenge to the HHS mandate. “The court says that EWTN just has to sign a certification, and that is it. The court doesn’t acknowledge what EWTN is being asked to do — which is to authorize, incentivize and obligate someone else to provide the contraceptives on EWTN’s behalf.”

Granade dismissed the language of the form as “innocuous,” and, by extension, the ruling also dismisses EWTN’s faith-based concerns about complying with the federal law. But Windham rejects the court’s suggestion that signing the form is a non-issue. “If EWTN’s signature on the form were ‘innocuous,’ then the government would be satisfied with EWTN doing what the Little Sisters of the Poor did — send a letter saying, ‘We object,’” said Windham. “In fact, they need EWTN to sign this form in order to hijack its health plan to provide these services.”

After misreading the basis of EWTN objections to the accommodation, the court improperly concluded that the “mandate does not impose a substantial burden on EWTN’s religious practice within the meaning of RFRA [Religious Freedom Restoration Act]. As a result, EWTN’s RFRA claim fails as a matter of law.”

Again, Windham disputes that finding and notes that EWTN objects to its forced complicity in what the third-party administrator will be doing. More importantly, says Windham, the court’s dismissive treatment of EWTN’s concerns about signing the form reflects a misunderstanding of the nature of EWTN’s free-exercise rights protected under the Religious Freedom Restoration Act and the U.S. Constitution.

It is not for the court to issue judgments regarding the theological soundness of a religious belief or practice, she notes. Under the RFRA, the court must determine whether the state has a “compelling” interest in advancing a law that substantially burdens free-exercise rights. Once that threshold has been met, the court must establish whether the state has adopted the “least restrictive means” of advancing that interest.

Religious freedom is not absolute, but it is entirely proper to ask that the courts in our land base their decisions on the law itself — and the RFRA calls on our government to enact laws that do not substantially burden free-exercise rights.

The RFRA was not enacted as a kind of window dressing for a regime of enforced conformity, but to uphold and secure the “first freedom” — the foundation of all our civil rights.

The Second Vatican Council, in its groundbreaking “Declaration on Religious Freedom,” underscores the vital importance of religious liberty: “This freedom means that all men are to be immune from coercion on the part of ... any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs … within due limits.”

The Council Fathers remind us that this freedom accords with our “dignity as … beings endowed with reason and free will and therefore privileged to bear personal responsibility — that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth,” and, once found, “adhere” to it.

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