A Washington, D.C. circuit court Tuesday issued a procedural ruling in a religious-freedom case that serves as both a shot in the arm for the protection of religious liberty and a newfound injection of facts in current post-election public discourse on the issue.
The evangelical Wheaton College and Catholic Belmont Abbey College are suing the Department of Health and Human Services over its coercive abortion-inducing-drug, contraception, and sterilization mandate for employers. Two lower courts had deemed the lawsuits premature, but the circuit court Tuesday disagreed and issued an order to the Obama administration’s HHS to appear in court every 60 days until its claim of an “accommodation,” which is still only a policy promise, has become a part of the official Obamacare “preventative services” regulatory regime.
This marks the second time this month that a judge has exposed the unimplemented nature of the administration’s faux “accommodation” of religiously affiliated nonprofits. In allowing a lawsuit by the Catholic Archdiocese of New York to go forward, Judge Brian Cogan of the United States District Court for the Eastern District of New York pointed out that:
There is no, “Trust us, changes are coming” clause in the Constitution.
Mark Rienzi, a professor of law at the Catholic University of America, is one of the lawyers working on the Wheaton/Belmont Abbey case at the Becket Fund for Religious Liberty. He discusses the win and what’s ahead:
Kathryn Jean Lopez: How big of a win was this for Wheaton and Belmont Abbey?
MARK RIENZI: It’s very big. Prior to this decision, these cases had been kicked out of court, and Wheaton and Belmont Abbey had been forced to trust their constitutional rights to non-binding, temporary, election-year promises from the administration. The D.C. Circuit’s decision rejects that approach in every way. The court said it is treating the government’s previous assertions as binding and permanent promises never to enforce the current rule against either these plaintiffs or other similarly situated parties. And the court is keeping the case and forcing HHS to report back regularly to ensure that they really do come up with an accommodation that solves the problem.
So the end result is, instead of being out of court and hoping that the government will keep to its non-binding and temporary promises, the colleges are now back in court, with a ruling making those promises permanently binding on the administration, and with judges who are demanding a regular report from HHS to ensure they really do fix the problem.
KJL: The ruling stands on direct contradiction to what the Obama administration has been claiming about the HHS mandate, doesn’t it?
RIENZI: Yes. In cases across the country, the administration has been making its “trust us, changes are coming” argument. The problem with this is that our constitutional rights cannot be made to rest on unenforceable promises from the government to fix a problem later. As the Supreme Court explained a couple of years ago, “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.” All three judges on the D.C. Circuit panel agreed that the colleges should not be left in this position, and instead insisted on making the government’s promises binding.
KJL: What can the Obama administration do to fix this, to restore the religious-freedom rights Wheaton and Belmont Abbey and others once had?
RIENZI: The fix is, and always has been, simple. All the administration needs to do is expand the definition of religious employer so that anyone with a religious objection to providing abortion-inducing drugs and other contraceptives does not have to provide them. That is what the First Amendment and federal civil-rights laws require here.
It is also worth noting that such a result will not suddenly strip millions of their access to contraceptives. Contraceptives are relatively cheap drugs, particularly for the group of people we are talking about here: those with full-time employment. Where people really can’t afford them, federal state and local governments already provide them for free to millions of people. There is no reason to force unwilling participants into this system.
KJL: Do you worry what’s going to happen to the small-business owner with conscience objections if Belmont Abbey and Wheaton College’s lawsuits get resolved?
RIENZI: Yes. Religious freedom is the birthright of every American. A waitress or gas-station owner has as much right to religious freedom as a monk or a nun. The administration has taken an extraordinarily narrow view of religious liberty: that as soon as someone enters the marketplace to earn a profit, he has surrendered his religious freedom. Thankfully, most courts to look at that question so far have rejected the administration’s stingy approach. And don’t forget — the last time this administration went to the Supreme Court with a narrow view of religious liberty, their arguments were rejected by a unanimous court in the Hosanna-Tabor case.
KJL: Is it odd or hypocritical for Americans to be putting their hopes in the courts here to fix a bad policy we just had a national election about?
RIENZI: Not at all. We are a nation of laws, and sometimes people need to go to court to enforce those laws. In any case, prior to this election, the president asked the American people to trust him to protect religious freedom — he held press conferences and made promises about not enforcing the current rule and formulating a new one. It is certainly fair for citizens to ask the courts to hold the administration to its word.
KJL: Is there a whole lot of religious-freedom education still to be done?
RIENZI: Yes. We are a wonderfully diverse nation in so many ways, and that includes our religious diversity. We have people in this country with a great variety of religious beliefs, some belonging to traditional faiths and many not. Unless there is a truly compelling reason, the government should not be in the business of forcing any of them to violate their faith just to make a living. We all lose when the government needlessly steamrolls someone’s civil rights.