It’s Nun of Their Business: Why Religious Groups Shouldn’t Be Compelled to Enforce What They Don’t Endorse

Today is a big day. Here’s why:

A quick Google search will give you more than one story involving a religious group contesting the HHS Mandate that is part of the Affordable Healthcare Act (Obamacare). What is the HHS Mandate? Allow me to explain:

  • Part of Obamacare requires employers to provide FDA-approved contraceptives to their employees; the Department of Health and Human Services (HHS) issued a mandate that began enforcing this rule several years ago. These contraceptives include traditional forms of birth control as well as new implantation prohibitors like Plan B (the morning after pill) and Ella (a related pill that can be taken a week later).
  • They do allow a kind of ‘exemption’ wherein the government pays for the coverage so religious organizations can feel ‘justified’ in knowing they didn’t pay for the contraception. The obvious issue is that for most of these organizations, their complaint is not just in paying for the coverage, but in providing it at all. It violates their religious convictions, regardless of who pays for it.
  • Not everyone is being required to follow the HHS Mandate. In fact, one-third of Americans aren’t held to the standard. Even the US military doesn’t have to abide by the rule. Other groups include large cities and corporations who already provided healthcare for their employees (groups like Pepsi, Visa, Exxon, etc.).
  • There is also an exemption for religious employers. Edward Whelan explains the details of this exclusion and its implications for the Catholic church but clearly the repercussions are far broader and insidious when applied to all religious groups:

“The HHS rule would allow (but not require) the HHS bureaucracy to establish exemptions from this mandate only for an extremely narrow category of “religious employers”: an organization qualifies as a “religious employer” only if its purpose is the “inculcation of religious values,” it “primarily employs persons who share the religious tenets of the organization, “and it “serves primarily persons who share the religious tenets of the organization.” As the head of Catholic Charities USA observed, “the ministry of Jesus Christ himself” would not qualify for the exemption. Nor will Catholic Charities, Catholic Relief Services, Catholic hospitals, food banks, homeless shelters, most Catholic schools, and even many or most diocesan offices, much less Catholic business owners who strive to conduct their businesses in accordance with their religious beliefs.”

It’s more than a little unsettling to see how many religious organizations are finding themselves in situations where they have to fight to protect their beliefs against the HHS Mandate of the Affordable Healthcare Act. If the courts choose to uphold this mandate they will be endangering the God-given, constitutionally-protected right to live according to one’s sincerely held religious conscience. But it doesn’t have to be this way.

Perhaps the most notable of these cases is, Little Sisters of the Poor v. Burwell. The case is set to appear before the Supreme Court for oral arguments on March 23rd. Of course, the passing of Justice Antonin Scalia (a loss that would deserve its own post altogether, and one that I can’t adequately explain) is a significant concern for many because he was widely known as the justice known for championing religious liberties.

Little Sisters of the Poor At Supreme Court Oral ArgumentsWhile I’m not part of the Becket Fund for Religious Liberty’s counsel (though, wouldn’t that be lovely if I were), I can make a fairly confident conjecture as to some of the relevant arguments they may make. These arguments apply to all such cases and should provide a foundation, however small, to begin to understand why it’s so important that the HHS mandate is overturned in favor of a standard that can be met fairly and equitably to all parties affected. Not to mention the dangerous precedent it would set if the Court rules in favor of the mandate.

The first and most prominent would be that the law fails to reach RFRA (the Religious Freedom Restoration Act) criterion. The federal law (and its companion state laws) is meant to protect religious people everywhere from government encroachment and coercion, thus maintaining government neutrality in matters of faith. The law uses the Sherbert test to determine whether or not First Amendment rights have been violated; Assuming that the objection to the law is derived from a sincerely held belief the questions become:

  1. Has the law, “placed a substantial burden on the observation of a central religious belief or practice”?

In relation to the Little Sisters of the Poor case, the obvious answer is yes. The government’s mandate imposes a practice that violates their core belief system and puts undue pressure on them to turn their back on the free exercise of their religion by issuing exorbitant fines and possibly taking away other services normally provided by the government.

  1. Does the government have a compelling interest to do so?

I’m not convinced that there is a compelling government interest to provide contraceptive care to its citizens. They can certainly make a compelling case—regardless of political opposition—that providing healthcare to the public is an important issue, but how does contraceptive care serve government interests? I’m not saying that birth control isn’t important for many individuals and that they shouldn’t have the right to access that care if they so desire, I’m saying that the government doesn’t have a stake in the matter. Even so, the next prong of the test also fails.

  1. Is the law being enforced in such a way as to limit the restriction placed upon the individual? Or, in other words, is there a less restrictive way to achieve the same end [assuming that there is a compelling interest]?

There are several ways in which the government could impose the same mandate in a way that would limit the imposition on the right to free practice of religion. The option that the Becket Fund has put forth was explained this way:

“There is an easy solution that protects the Little Sisters’ religious freedom and the right of the government to offer these services to women who want them.  Rather than trying to force religious plans to offer these services, the better solution is for the government to provide these services through the ACA healthcare exchange to any employees who want them but can’t get them through employer plans.

The Little Sisters are not trying to prevent the government from providing these services, but object to the government’s insisting the Little Sisters provide them (especially since the government has already refused to ensure that those free services are provided to one in three Americans). Giving all women access to contraception through the healthcare exchange is a simpler and fairer way for the government to provide these services to more women while protecting the religious freedom of the Little Sisters, who never wanted this fight and just want to get back to caring for the elderly in need.”

Mandate Exemptions Square
The truth is, with minimal time and consideration one can come up with a whole host of different options that allow people who want contraceptive care to have access to it without sacrificing the religious convictions of those who protest the mandate.

For the sake of brevity, I’ll limit myself to one more argument. That is, the court ought to give preference to the Little Sisters of the Poor because if not, they fall victim to compelled speech. Put another way, they will be forced to represent a narrative that they do not endorse.

There’s plenty legal precedent involving compelled speech, and the highest court in the land has made it clear that compelling speech is in violation of the first amendment and is, therefore, unacceptable by that standard. Indeed, the standard by which all laws must be held accountable makes it clear that this is simply unacceptable.

One such example is Hurley v. Irish-American Gay Group of Boston (1995). In that case, the court established that, “”Since all speech inherently involves choices of what to say and what to leave unsaid,” Pacific Gas & Electric Co. v. Public Utilities Comm’n of Cal., 475 U.S. 1, 11 (1986) (plurality opinion) (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide “what not to say.””

Because the mandate equates to compelled speech, the law is unconstitutional and an alternative option must be given in order to reach a harmonious balance of the government’s interests and the vital rights to practice free speech and religion.

Please understand that this issue is important for people across the religious spectrum, and indeed, to people everywhere who take their rights and liberties seriously. Perhaps this particular case only impacts the lives of several nuns and the benefactors of their selfless service (which, shouldn’t be minimized), but the implications impact everyone.

It means that the government can exist in harmony, without forcing the moral motivations of others to be left by the wayside. This issue is one of balance, which has always been at stake; but now more than ever, it is at risk of toppling over at the expense of those whose moral compass makes this delicate democratic republic possible.

At the end of the day, the message is clear: in relation to the contraceptive mandate, it’s nun of the government’s business (pun intended). The free exercise of religion is one that must be protected. Because I will pray that God will help us sustain and establish the right of all people to believe in Him, I too will stand with the sisters and with all others who have had to endure religious persecution of any kind. It is our obligation to do so. It is our blessing to do so.


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