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At first glance, the Obama administration’s conscience exception to the Department of Health and Human Services abortifacient and contraceptive mandate is bewildering. The exemption is limited to an organization that “(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets.” These distinctions are incomprehensible if this exemption is an attempt to protect the Free Exercise Clause of the First Amendment.
How could the president possibly believe that organizations which meet these three seemingly arbitrary criteria have a greater right to the free exercise of religion than others? Consider Chabad, a Jewish outreach program, hosting Friday night dinners to reach out to Jews who do not “share its religious tenets.” Is a Chabad synagogue less religious than other Jewish synagogues because they engage in more outreach? Consider the Salvation Army, offering hospitality and kindness to down-on-their-luck individuals regardless of whether they share “its religious tenets.” Is the Salvation Army irreligious because they seek to feed the hungry as much as they seek the “inculcation of religious values?” Would they be any more religious if they stopped to make sure that a hungry man shared their faith before offering him a meal? Even some volunteers who help prepare and serve food at a religiously run shelter may not “share its religious tenets.” Are we to seriously believe that this makes “Miriam’s Kitchen,” “Loaves and Fishes,” or similar church-run efforts not “religious?”
No member of the Supreme Court voted to endorse the government’s argument in Hosanna Tabor.
The exemption is only understandable if you accept the premise that it was never intended to protect religious objections. If you read the text of this exemption in light of the administration’s arguments in the Hosanna Tabor Supreme Court case, it becomes clear that this exemption was intended to protect a right rooted in the freedom of expression, not the free exercise of religion. Gerard Bradley wrote an excellent piece regarding the connection between Hosanna Tabor and the HHS abortifacient mandate over at National Review.
The Hosanna Tabor case concerned whether a former teacher at a Lutheran school could sue the school for firing her in alleged violation of the Americans with Disabilities Act (ADA). The Establishment and Free Exercise Clauses were generally acknowledged to create a “ministerial exception” that prevented religious leaders from suing their congregation if it dismissed them for religious reasons. The teacher’s lawyers argued that this exception did not apply to their client because her role at the school was insufficiently religious. The Obama administration took a far more radical approach, arguing that the Free Exercise Clause did not create a ministerial exception at all. The government’s lawyer stated, “We don’t see that line of church autonomy principles in the Religion Clause jurisprudence as such. We see it as a question of freedom of association.” She clarified that this protection was no different than the protection afforded to any other group that gathered for expressive purposes. The main inquiry in such a case would be whether the regulation at issue interfered with the organization’s ability to “express and share a religious belief.”
These distinctions are incomprehensible if this exemption is an attempt to protect the Free Exercise Clause of the First Amendment.
This line of reasoning is shocking, but you do not have to take my word for it. Justice Scalia called the argument “extraordinary.” Justice Kagan described it as “amazing.” Under the government’s test, it would only have to refrain from interfering in a religious organization’s hiring decisions if it decided that, in a particular situation, the burden on expression caused by such interference outweighed the government’s interest in interfering. In other words, the First Amendment does not provide any heightened protection to religious conduct. The government would only refrain from requiring Catholic churches and Orthodox synagogues to hire female priests and rabbis because of the balance of the interests at stake. If the government decided it had an important enough interest, there would be no per se rule preventing such an imposition. “Extraordinary” and “amazing” are mild ways to describe this argument. No member of the Supreme Court voted to endorse it.
In light of this argument, the limited conscience protection makes more sense. The limitations on the exception are perfectly rational if their sole purpose is to ensure that an organization remains free to “express and share a religious belief.” The exception never intended to protect people’s moral and religious beliefs, only their expression. Taken together, the exception’s three requirements perfectly track the interpretation of the Free Exercise clause that the Supreme Court rejected in Hosanna Tabor, requiring that exempted organizations express and share religious beliefs. This is why the president was perfectly willing to exempt a church, but not a charitable organization whose primary purpose is doing charitable works and not exclusively or even necessarily preaching doctrine.
This explanation also reveals the reasoning behind the president’s “accommodation.” The main purpose of the new proposed rule is to allow religious organizations to remove abortifacients and contraceptives from their insurance receipts. This rule does nothing to assuage those organizations’ religious or moral objections to providing abortifacients and contraceptives; it does, however, in a limited way, protect their freedom of expression.
It is clear that this exemption was intended to protect a right rooted in the freedom of expression and not the free exercise of religion.
The government’s refusal to respect the free exercise of religion is as “amazing” in regard to the abortifacient mandate as it was in Hosanna Tabor. Religious organizations’ opposition to providing their employees with free abortifacients and contraceptives goes far beyond a matter of self-expression. Religious individuals see themselves as having personal and communal relationships with their Creator and as living lives organized by God’s will. It is this ability for religious people to live their lives in accordance with their religious beliefs that the free exercise clause is intended to protect. The religion clauses put forth by the administration in Hosanna Tabor and implicit in the abortifacient mandate’s conscience exception reveal a shallow view of both the constitution and of what it means to be a religious person.
The Supreme Court rejected the administration’s “extraordinary” attempt to ignore the First Amendment’s religion clauses in Hosanna Tabor, and courts should do so again when they consider litigation over the abortifacient mandate. When it comes to the president’s disregard for protecting religious liberty, at least we know he’s consistent.
Howard Slugh is an attorney in Washington, DC.
Image by Darren Wamboldt / Bergman Group
The president’s disregard for protecting religious liberty before the Supreme Court is consistent.
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