The Corner

Losing My Religion in Court

I’m so glad Ed Whelan highlighted my friend Melissa Moschella’s excellent Public Discourse piece on the HHS mandate and the courts today over on Bench Memos.

(Both Ed and Melissa are great gifts to America and are both doing their part to help educate and move mountains on religious liberty, in their different parts of the world. This new year, do give some thanks for Ed, Bench Memos, and the Ethics and Public Policy Center. Treasures, all. )

In her piece, Melissa highlights the dangerous precedent being danced around by some judges in cases where plaintiffs are seeking HHS Mandate relief from the federal government: 

In effect, Judges Jackson and Heaton are telling the Greens and Frank O’Brien—and by extension the 108 other plaintiffs challenging the mandate as well—that they, and the religious authorities who support them, simply have their theology wrong.

These decisions set a dangerous precedent by arrogating to government officials the authority to make determinations about what a religion does, and does not, require its followers to do or refrain from doing. If we continue down this path, soon judges will be telling Jews that their religion does not require male circumcision, devout Muslims that wearing the hijab is merely optional, or Catholic doctors and nurses that their religion permits them to perform or assist in abortions. To put such power in the hands of the government is to eradicate the separation of church and state and to deal a death blow to the free exercise of religion. If we are to preserve our First Amendment rights, Judge Heaton’s ruling must be overturned. More generally, as these HHS mandate cases make their way through the appeals process and eventually reach the Supreme Court, judges must scrupulously avoid deciding them based on theological claims.


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