WASHINGTON — Catholic institutions and pro-life groups in the District of Columbia are facing the prospect of waging legal action to defend their religious and conscience rights, after the Republican-controlled Congress failed to stop a pair of laws passed by the D.C. City Council from going into effect.
Back in January, D.C. Mayor Muriel Bowser signed into law two bills that the U.S. Conference of Catholic Bishops and an assortment of pro-life and Catholic institutions warned Congress posed “unprecedented assaults” on their constitutional rights to “freedom of religion, freedom of speech and freedom of association.” Both bills have survived a 30-day required period of congressional review, and they are now officially on the books in the district.
One bill, the Human Rights Amendment Act (HRAA), directly affects Catholic educational organizations by repealing a 1989 law enacted by Congress, which sought to protect religious educators in the District of Columbia from being forced to sponsor homosexual clubs and related events that conflict with their beliefs.
The second bill, the Reproductive Health Non-Discrimination Amendment Act of 2014, makes it illegal for employers to take any action over an employee’s “reproductive-health decision-making” that may violate the “employer’s personal beliefs about such services.”
“We will certainly defend our rights, insofar as they are affected by these two bills,” said John Garvey, president of The Catholic University of America (CUA), which is located in the northeast corner of D.C. “I’m disappointed in both of these cases: that the District has not shown more concern for religious liberty — it’s a civil liberty as old as the country is.”
Both the Catholic Church and other pro-life groups in D.C. have objected that the language is so broad that it requires them to hire and maintain employees who openly do not share their views of human life and sexuality and either face lawsuits or leave the federal district if they do not comply.
“It’s hard to imagine that we would seek employment action against one of our employees who, like Dorothy Day, may have had an abortion in their lifetime — if anything, the Catholic Church understands mercy and forgiveness better than the government does and most organizations,” Garvey said. “On the other hand, if somebody who had an abortion and honestly believed that that was the appropriate course of action to take, and wanted to advise our students … to take a similar course, then that would be contrary to the message that we’re trying to extend to people.”
Ovide Lamontagne, general counsel for Americans United for Life, which is based in D.C., said that as a secular pro-life organization, it has a real concern about freedom of association: “This law would require us to hire someone who does not believe in our mission. That is what it comes down to for us.”
“You can’t be forced to hire people who are going to work against you in their private lives outside of the employment context,” he said. “That’s not compatible.”
According to Robert Destro, a law professor and founding director of the Interdisciplinary Program in Law and Religion at CUA’s Columbus School of Law, the district is now locked in a collision course toward legal action that will be costly for all sides.
“We’re not going to be able to live with it,” he said, adding that the legal course boils down to “only two options.”
“You can either wait for them to sue you, or you can sue them.”
Patrick Reilly, president of the Cardinal Newman Society, said the religious liberty of Catholic educators in D.C. — whether it be at elementary schools or universities — faces threats from both bills. The HRAA, he said, puts Catholic educational institutions in the position of providing space and support to student clubs that “very often turn into advocacy that is contrary to the teaching of the Church and on marriage.”
The new nondiscrimination law, he said, could make morality clauses in teacher contracts illegal or impossible to enforce.
“It could prevent employers from disciplining employees — not simply because of their [past] decisions — but because they advocate abortion or promote something contrary to the Catholic faith.”
Congress Drops the Ball
Reilly reserved his harshest criticism for the Republican-controlled Congress for not exercising its authority under the district’s home-rule framework to veto the objectionable laws within a 30-day congressional review period. In order to overturn the laws passed by the D.C. Council, both the House of Representatives and the Senate would have had to pass a resolution and get it signed by the president.
However, the House resolution to overturn the district’s Human Rights Amendment Act died in committee.
The resolution vetoing the Reproductive Health Non-Discrimination Act went much further and was passed by the House. However, the Senate never took up the bill before the 30-day review period expired.
“This was a great opportunity for Congress to demonstrate that it cared about religious liberty,” Reilly said, calling Congress’ failure an “abdication” of responsibility.
But AUL’s Lamontagne said getting a resolution successfully through Congress to overturn any D.C. bill was a longshot. He said a successful resolution of disapproval has only been enacted three times since 1973.
Lamontagne said AUL is mulling three potential options to fight the reproductive-health nondiscrimination law. The first two options would be to join with other organizations in challenging the law, or defend themselves against an enforcement action. The U.S. Supreme Court precedent set in Boy Scouts of America v. Dale, he said, provides them firm ground to maintain that the Constitution’s protection of freedom of association means organizations are not obliged to hire people in leadership positions who don’t believe in the principles of the organization.
The third course of action, he said, would be to continue to work with Congress to address it “through an appropriations rider or an outright bill to set this [law] aside.”
“We haven’t made a final decision,” he said.
The Stalking Horse
According to Destro, the federal district by its nature is a “national symbol,” and the new D.C. laws are not good signs for the near-term future of religious liberty and freedom of conscience in the United States. For cultural elites dissatisfied with the religious-freedom protections in the Supreme Court’s Hobby Lobby ruling, the pair of D.C. laws provides another opportunity to fire another salvo against religious freedom. Former Secretary of State Hillary Clinton’s remarks that “religious beliefs” have to be changed to increase abortion access, and the Obama administration’s admission to the high court that it may go after Catholic schools’ tax-exempt status for affirming marriage as the union of a man and a woman, are all indicative of an increasingly hostile socio-political environment in which religious freedom is “one piece of a much bigger puzzle.”
As he said, “What we’re really looking at now is a real sea change in our understanding of the First Amendment.”
Peter Jesserer Smith is the Register’s Washington correspondent.