- The Washington Times - Tuesday, January 24, 2012

The Obama administration proved Friday that California laws continue to have national influence. But this time, the pattern has wrought a serious violation of the First Amendment protection for religious liberty.

Health and Human Services (HHS) Secretary Kathleen Sebelius is sticking with a rule that mandates insurance coverage for sterilization and contraceptives, including some that cause abortions. But the rule’s exemption for religious employers is so narrow as to have raised the ire of religious leaders, organizations and pundits across the political spectrum.

That is no surprise because the same thing happened more than a decade ago on the West Coast. The HHS exemption mirrors language that the American Civil Liberties Union attached to California’s 1999 law mandating insurance coverage for contraceptives, which provoked similar outrage from religious leaders and a court challenge from Catholic Charities. As in California, the HHS rule exempts only churches and church-affiliated entities that inculcate religious values, and serve and hire “primarily” people of the same faith. Many faith-based colleges, schools, hospitals and other charities that serve and hire people of other faiths or are independent of church control will be forced to violate their deeply held religious convictions.

What Mrs. Sebelius does not know from California’s experience is whether her mandate can withstand scrutiny in the federal courts. Although the law was upheld by the California Supreme Court in 2004, it was never contested in federal court. Given the recent tenor of the U.S. Supreme Court in support of religious liberty, sticking to an exemption that does not appear to cover most religious organizations is a gamble.

It’s a gamble that Mrs. Sebelius must lose. Otherwise, Americans may lose one of the cherished freedoms upon which this nation was founded.

Why the hard line from Mrs. Sebelius after the White House made significant efforts to appear sympathetic to religious concerns? President Obama had even met personally with Archbishop Timothy Dolan, president of the U.S. Conference of Catholic Bishops, raising hopes that the HHS exemption for religious employers might be broadened.

Mrs. Sebelius also tried to appear sympathetic in her announcement of the final rule, but it was laughable. “This decision was made after very careful consideration,” she wrote in a statement from HHS. “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.”

But where is the “balance” in her decision? Is forcing religious employers to violate their core beliefs necessary to expand “contraceptive services,” which are already widely available? Is there “balance” in a rule that blatantly violates religious freedom in order to serve the abortion lobby and its cult of “choice”?

The Obama administration also seems off-balance to invite a court battle in an election year over the First Amendment’s freedom of religion. Whereas the California court battle never considered questions under federal law, lawsuits have been filed accusing Mrs. Sebelius of violating the Constitution.

Challenging the federal government is Belmont Abbey College, a small Catholic institution owned by monks in the mountains of North Carolina, and the nondenominational Colorado Christian University. Both are represented by the aptly named Becket Fund for Religious Liberty, which stunned the Obama administration this month by prevailing in a unanimous Supreme Court ruling rejecting the Justice Department’s bid to regulate the hiring and firing of “ministerial” employees of religious organizations.

The schools have filed lawsuits against the HHS insurance mandate in federal court, and their cases are perhaps the best opportunities to overturn the regulations.

“This is the last avenue of relief,” Hannah Smith, senior legal counsel for the Becket Fund, said in an interview for the blog Campus Notes. “There’s a lot riding on these lawsuits.”

Ms. Smith said the one-year extension announced for religious employers is a “shameless” political decision to avoid attention to the consequences of the rule before the presidential election. Such consequences could include the elimination of important social services from Catholic and other religious groups that refuse to comply with the rule but cannot afford the stiff financial penalties.

Many religious liberty analysts agree that HHS has overstepped its authority. Attorneys from the Alliance Defense Fund have written that the HHS exemption “violates the right to religious freedom protected throughout federal law,” including under the Religious Freedom Restoration Act and the First and 14th amendments to the Constitution.

There is no question that the mandate imposes a heavy burden on many religious organizations. At the Cardinal Newman Society, we have spoken with a number of Catholic college leaders who see no option but to defy the law, pay the heavy fines and risk losing valuable employees. Other consequences could include the loss of accreditation and financial support. Absent a court victory, that may be the gloomy future ahead for thousands of faith-based services and charities.

Patrick J. Reilly is president of the Cardinal Newman Society.

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