- The Washington Times - Friday, December 25, 2009

ANALYSIS/OPINION:

At Christmastime, many Americans remember thankfully that the ability to celebrate freely in this country is a rare and hard-won gift of liberty.

In recent years, however, it has become clear that the battle for religious freedom in this increasingly secular state is not over. Surprisingly enough, a court case at play at a small Catholic college is a disturbing reminder that freedom of religion is not as secure in the U.S. Constitution as you might think.

This year, the U.S. Equal Employment Opportunity Commission (EEOC) has accused Belmont Abbey College near Charlotte, N.C., of engaging in sex discrimination against women. Belmont Abbey, a Catholic school founded in 1879, refuses to provide insurance coverage for oral contraceptives based on its belief that the use of contraceptives is not morally permissible.

That the Catholic Church believes life is so sacred it opposes contraception is not exactly a highly classified secret.

However, in the words of Reuben Daniels Jr., EEOC’s Charlotte District Office director, “By denying prescription contraception drugs, [the college] is discriminating based on gender because only females take oral prescription contraceptives.” He added, “By denying coverage, men are not affected, only women.”

Belmont Abbey College President William K. Thierfelder will not bow the knee to the EEOC and has said, “We are so resolute in our commitment to the teachings of the Catholic Church that there is no possible way we would ever deviate from it, and if it came down to it … we would close the school rather than give in.”

The college’s defense has a clear logic. Its employee insurance does not cover abortions, sterilizations or contraceptives for either sex. The college will not pay for sterilizations for men or women. Contraceptives are not covered for men or women. Abortions for the spouses of male employees conceivably could be covered, but they are not. (Clearly, male employees could not be covered for abortions.)

The college has significant legal support. In March 2007, the Midwest’s U.S. 8th Circuit Court of Appeals, in its decision for the Union Pacific Railroad Co., rejected the position of the EEOC, which had sided with female employees who had sued the company because its health care plan did not cover contraceptives. The court noted that neither the Pregnancy Discrimination Act (1978), the statute in question, nor its House or Senate legislative histories mentioned contraception.

Furthermore, Union Pacific’s insurance policies excluded “coverage of all contraception for women and men, both prescription and surgical.” The court found that the company’s “denial of coverage for contraception for both sexes did not discriminate against its female employees.” This looks a lot like the factual scenario presented by Belmont Abbey College, except that Union Pacific’s case was weaker.

The college can rely on Union Pacific, but it also has religious grounds for not providing the coverage, and those concerns clearly implicate First Amendment protections. This means Belmont Abbey College is on strong legal ground in making its case.

Still, the 8th Circuit does not have jurisdiction over North Carolina. Rather, the 4th Circuit does, and it has not addressed these questions. Therefore, it might reject the college’s argument and hold for the EEOC. That certainly would be the position taken by the liberal legal intelligentsia.

One can only hope and pray that the EEOC will follow the wiser path and reverse course. If it does not, the college will confront the agency as long as it can - perhaps all the way to the Supreme Court. Should the college lose, most think the leadership will remain true to Catholic teachings and close its doors, leaving religious freedom in America badly damaged.

One might be forgiven for ignoring the fate of Belmont Abbey College alone, but this threat to conscience is part of a larger pattern affecting the entire nation. For example, 12.7 percent of American community hospitals are Catholic - 624 of 4,897. It is hard to imagine that they will not encounter similar problems. According to the Association of Catholic Colleges and Universities, there are 244 Catholic degree-granting institutions, and many of them will be at risk if the EEOC has its way.

As large as those figures are, the number of parochial schools across the country must dwarf those totals. Those schools can be found in every part of the nation, often providing a substantial number of services to the urban poor. Many Protestant health care facilities will have similar problems if compelled to cooperate in providing abortions.

Even if Belmont Abbey College wins in court, the chilling effect on religious believers will be profound. The costs of litigation are tremendous, and many institutions may choose to compromise their faith rather than resist. That, in large part, is the goal of the public-interest lawyers who are assisting the complaining employees from the college.

So it is that at Christmastime, as the locustlike swarms of liberal activist attorneys prowl the country looking for signs of faith to devour, the case against a small Catholic school is most poignant. The time is now for people of faith to stand with Belmont Abbey College, knowing that if it falls, many will follow. The battle to protect religious freedom must be joined by those who hope to continue to practice their faith and pray for peace on Earth and good will to all men and women.

Christopher Gacek is a senior fellow at the Family Research Council, a family-policy organization.

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