WASHINGTON — The U.S. Conference of Catholic Bishops (USCCB) and other national and local organizations in the District of Columbia have called upon Congress to repeal a pair of laws passed recently by the D.C. Council.

The laws, they say, pose “unprecedented assaults upon our organizations” and their religious liberties.

“Both laws violate the freedom of religion, freedom of speech and freedom of association protected by the First Amendment and other federal law,” stated the Feb. 5 letter, signed by representatives for the USCCB, the Archdiocese of Washington, the Archdiocese for the Military Services, The Catholic University of America and other Christian, pro-life or conservative advocacy groups.  

D.C. Mayor Muriel Bowser signed into law Jan. 24 the Reproductive Health Non-Discrimination Amendment Act of 2014 and the Human Rights Amendment Act of 2014.

The first piece of legislation expands the scope of D.C.’s Human Rights Act to make discrimination of an employee’s “reproductive-health decisions,” including abortion, unlawful.

The Human Rights Amendment Act, meanwhile, repealed a 1989 law enacted by Congress known as the Armstrong Amendment, which sought to protect religious educators in the District of Columbia from being forced to sponsor homosexual clubs and related events.

The now-repealed Armstrong Amendment states that private religious educational institutions had the ultimate say over the “use of any fund, service, facility or benefit or granting of any endorsement, approval or recognition to any person or persons organized for or engaged in, promoting, encouraging or condoning any homosexual act, lifestyle, orientation or belief.”

The letter on behalf of the USCCB and other groups argued that the laws together violated the First Amendment and the Religious Freedom Restoration Act and would ultimately result in costly legal battles for the city.

“While we will continue to serve the city and the nation, we cannot surrender the constitutional freedoms that the Framers of the U.S. Constitution rightly reserved to all of us,” it stated, urging Congress to overturn the law.

Under D.C.’s home-rule framework, laws have to pass a 30-day congressional review. If any member of Congress has an objection, both the House and Senate would have to pass a resolution, signed by the president, to reverse each law.

 

Catholic Education Dangers

Patrick Reilly, president of the Cardinal Newman Society, said neither bill has a strong religious exemption and consequently threatens the character of Catholic education.

Vincent Gray, Bowser’s predecessor, had refused to sign the reproductive health law as mayor and warned in a Dec. 2 letter that the D.C. Council risked a losing court battle if it did not clarify the Human Rights Act’s “existing exemption for religious and political organizations to ensure that the exemption protects the religious and political liberty interests that the First Amendment and the [Religious Freedom Restoration Act] are designed to secure.”

Bowser has proposed changing the language of the reproductive-health law that would appear to exempt the provision of health coverage from the changes.

The Register reached out to the mayor’s office but did not receive a response by publication.

However, Reilly said it would still prevent Catholic institutions from firing employees who acted at odds with the Church’s mission, such as an employee who procures an abortion for oneself or another.

“There have been recent cases where a teacher was dismissed for IVF treatment after being notified that it was against Catholic teaching,” he added.

“This would certainly interfere with morality clauses in teacher contracts that do require teachers to exhibit and follow Catholic teaching and not simply give it lip service in the classrooms.”

Reilly said the repeal of the Armstrong Amendment poses another serious concern that the district would attempt to impose its will on Catholic educators, as they had done back in 1989. At that time, the D.C. City Council took Georgetown University to court because it refused to recognize officially or provide space for GU Pride, a student homosexual-advocacy group.

“It’s our reading of the law that, even if it violates Catholic teaching or openly advocates dissent from Catholic teaching, a Catholic institution would not be able to halt that activity and would in fact be possibly required to sponsor it.”

 

Will Republicans Act?

Reilly said there is plenty of time for congressional Republicans to act about the pair of bills.

“This will be a great test to see how serious the [GOP] leadership is about stopping these things,” he said.

He said one option might be to attach legislation overturning the D.C. bills to must-pass legislation, “where President Obama might be inclined not to veto it.”

Failing action by Congress, the remaining avenue for overturning the new laws would be through the courts.

Former Sen. William Armstrong, author of the 1989 amendment that was repealed by D.C.’s Human Rights Amendment Act, told Cardinal Newman Society in an interview that he believed the law would end up in a “long, drawn-out process” that would ultimately lead to its reversal.

“My guess is, in the long run, it’s unconstitutional for the City Council to do that — particularly under the Religious Freedom Restoration Act, but also under the First Amendment,” he said. “In the meantime, they can certainly cause a lot of trouble and certainly force universities to spend money on lawyers.”

Robert Destro, a law professor and founding director of the Interdisciplinary Program in Law and Religion at The Catholic University of America’s Columbus School of Law, said the D.C. laws are “all symbolic politics.”

“The easiest thing they want to do is scare smaller businesses into compliance, even though they don’t have a legal right to ask them to,” he said.

The reproductive-health amendment signed by Bowser, Destro said, was “basically trying to tell these business owners that they can’t do what the Supreme Court said they could in Hobby Lobby.”

While larger institutions have the heft to litigate against the city, “some mom-and-pop store is not going to have the wherewithal to fight this.”

Destro said that any legal challenge to the HRAA would likely have to address the preliminary question of whether the D.C. Council has any authority to repeal a law that Congress has written for the district.

But he said that a lawsuit — either for the HRAA or the reproductive-health law — would ultimately depend on the district deciding to enforce their new laws.

“It’s only until they try to prosecute somebody under this act, or hold them liable in some way,” that a lawsuit can be filed, said Destro, because, until they do, “there’s arguably no standing even to file a lawsuit.”

“Until they bite somebody with their newly acquired teeth, there is really nothing for anyone to do other than speculate.”

Peter Jesserer Smith is the Register’s Washington correspondent.