One might have expected that, after losing the signature religious-liberty case of the past two decades earlier in January with arguments that his own Supreme Court appointees called “extreme,” President Barack Obama would have learned that conscience is something to be taken seriously.
Alas, no. On Jan. 20, in a statement from Health and Human Services Secretary Kathleen Sebelius, the Obama administration announced it would not reconsider its “contraceptive mandate” — that is, the unprecedented command it issued last August forcing all private health plans to cover contraceptive and sterilization services, including drugs that cause early-term abortions.
From the outset, the administration sought to camouflage the mandate’s radical assault on conscience by inserting an exemption for “religious employers” who objected to paying for contraception and abortion. It is a pitifully small fig leaf, however.
An organization cannot qualify if it has a “non-religious” aim (such as caring for the sick or feeding the hungry), or if it hires or serves persons of different faiths. In other words, the administration has managed to legislate a grotesque inversion of the parable of the Good Samaritan: A religious group loses the protection of the law precisely because it reaches across boundaries to help the outsider.
Obama’s contraceptive mandate violates the Constitution in several ways. First, it represents an ugly form of what the courts call a “religious gerrymander.” As the administration knew, most employer-based plans already covered contraceptives, but objecting employers — mostly Catholic — were still free not to offer it. The mandate squashes that freedom by filling the so-called “Catholic gap” in coverage. The Free Exercise Clause does not tolerate such blatant discrimination.
Second, the mandate hijacks the governance of religious organizations. As the Supreme Court dramatically (and unanimously) confirmed earlier in January in Hosanna-Tabor Church v. EEOC, the Constitution forbids government interference in the internal affairs of religious organizations.
That underscores why the mandate is unconstitutional: What could be more intrusive than forcing a religious employer to pay for conduct that violates its own moral code?
Most disturbing, however, is the “religious employer” exemption. The shockingly narrow criteria — modeled on a California law ghost-written by the ACLU — segregate religious organizations into favored and disfavored classes. Who gets the exemption? Organizations that focus inwardly on “religious” matters. Contemplative monks might qualify, provided they do not sell Christmas fruitcakes.
Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.
This kind of religious quarantine is patently unconstitutional. The First Amendment forbids the state from picking favorites among religious groups. In their comments protesting the exemption, the U.S. Conference of Catholic Bishops put it well: “In effect, [the administration] is purporting to distinguish between religious denominations and organizations that are, so to speak, insular in their workplace and ministry and those that have a missionary outlook. That is blatantly unconstitutional.”
Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.
But there is a world of difference between merely “tolerating” religion and guaranteeing its “free exercise.”
Our Constitution does the latter, embracing the distinctive contributions of religious institutions to civil society. Lamentably, the federal government’s contraceptive mandate takes the opposite approach, acting on the crabbed premise that the rights of conscience are a gift of the state, not of God.
Given the mandate’s multitude of flaws, one might have expected Obama at the very least to expand the religious-employer exemption. After all, this is the president who told Notre Dame graduates in 2009 that we should “honor the conscience of those who disagree with abortion and draft a sensible conscience clause.”
The Jan. 20 announcement revealed how empty that promise was, when Sebelius announced there would be no change to the exemption. Objecting religious employers would merely get “an additional year, until August 2013, to comply with the new law.”
This perverse grace period would, Sebelius soothingly assured, “allow these organizations more time and flexibility to adapt to the law.” It is safe to say that thousands of religious employers do not agree. An additional year — an additional thousand years — will not be sufficient to erode what their consciences tell them about the sacredness of sexuality and human life.
Given the administration’s intransigence, it is becoming increasingly apparent that the contraceptive mandate is headed for its reckoning in federal courts and ultimately in the Supreme Court. When it does, the court should find that it violates our Constitution’s most basic commitment to religious liberty.
Kyle Duncan previously served as the solicitor general of Louisiana.
In January, he joined The Becket Fund for Religious Liberty, which has brought two lawsuits seeking to overturn the contraceptive mandate.