The key element in Judge Cogan’s finding was his specific rejection of the administration’s minimalistic approach to religious liberty. This is yet another instance in which courts have rejected (unfortunately not unanimously) the administration’s narrow and unhistorical view of religious liberty — see the Supreme Court’s decision in the Hosanna Tabor case, and numerous lower-court rulings on the HHS mandate.
Judge Cogan rightly found that the HHS mandate improperly requires church agencies to perform acts that are directly contrary to their Catholic faith — by forcing them to affirmatively endorse and facilitate access to abortion, contraception, and sterilization, under penalty of ruinous fines. This is a very important point, and one that should be axiomatic to anyone who believes in ordered liberty. If religious freedom means anything, it means that the government can’t force people to do things that they believe God has forbidden. For people of faith, there is a hierarchy of authority, and it is deeply unjust for the government to try to arrogate to itself the ultimate authority over people’s consciences.
Pope Francis has made this point forcefully, saying:
A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism.
This fundamental principle of human liberty is embodied in the traditional understanding of the First Amendment’s religion clauses, and in the Religious Freedom Restoration Act. At some point, one hopes that the administration will awaken, and recall that there are necessary limits on state power, if a nation and its people are to be truly free.
— Edward T. Mechmann is director of public policy for the Archdiocese of New York.