You Can’t ‘Compromise’ on Religious Liberty


Jordan Sekulow

March 30, 2012

8 min read




Hasn’t it always been liberals telling us to keep religion out of politics, legislation and government? Now, our liberal president and his administration have proven that they are committed to trying to do just that. The federal government has targeted Catholics and pro-life religiously affiliated organizations, schools, and hospitals by using the power granted to the executive branch in ObamaCare, underscoring warnings made by the ACLJ and other organizations that the 2,700+ page law was just the tip of the iceberg when it came to the new power made available to the federal government. Most importantly, it grants broad administrative regulatory authority that bypasses Congress.

Social issues are now at the center of a national debate because liberals have had enough of religious people standing in the way of their policies.

Yet, it doesn’t stop with the HHS regulations. The Obama administration argued at the U.S. Supreme Court that the ministerial exception – which since 1872 has allowed religious institutions to terminate a person hired to teach, minister, and/or affirm a specific theology if they refuse to do so, without fearing a retaliatory lawsuit – should be eliminated. Thankfully, the Obama Justice Department lost 9-0.

But, in their efforts to eliminate faith’s role in politics and government, an entirely new culture war has been ignited by the same liberals who have told us that politics and religion don’t mix, that we shouldn’t legislate morality (unless it comes to raising taxes), and who don’t believe there should be any religion-based conscience exemptions. Under their interpretation of the First Amendment, the bar on “respecting an establishment of religion” trumps the right to the “free exercise” of our deeply held convictions even when that means bucking nearly 150 years of legal precedent.

The Obama Administration’s Department of Health and Human Services (HHS) decision to force religious institutions to provide insurance coverage for abortion pills is nothing short of a war on religious liberty. And President Obama did nothing to change this fact with his latest “accommodation.”

This is not just an assault on life, or even Catholics, it is a direct attack at the heart of religious freedom and free exercise – the very essence of the First Amendment.

Make no mistake; this regulation is not just about contraceptives. The regulation at issue will force all employers to provide insurance coverage for abortifacients – the morning-after pills that can contribute to the abortion of a fertilized egg.

Imagine a pro-life pregnancy center, the purpose of which is to provide an alternative to abortion, being forced to provide health insurance coverage that guarantees coverage of abortifacients for its employees. That is exactly what this regulation does.

Of course, this regulation also requires Catholic and other religious institutions, such as schools and hospitals, to cover contraceptives for their employees as well. Think about that. The Obama administration is telling a religious institution what it must pay for – essentially making a government-mandated doctrinal decision about what the religious institution will support and provide for its own employees.

And the White House believes there are no “constitutional rights issues here”?

But again, this is more than a pro-life issue or a Catholic issue. This is a direct assault on the role of faith in American life.

The First Amendment begins with these immortal words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ..” Yet, the Obama administration made the determination, that regardless of the tenets of a particular faith, it will require religious institutions to provide for its employees (i.e. pay for something) that violates the very purpose and religious beliefs of the institution itself.

So what changed in the president’s “accommodation”? In a word, nothing.

President Obama merely created an accounting scheme in an attempt to pacify the outrage over this issue.

Here is how it will work: Religious institutions will no longer be forced to directly pay for contraceptives and abortifacient insurance coverage that are against their religious beliefs. They will be required to purchase health insurance, and the insurance company will be required to pay for and cover abortifacient. As President Obama stated, “no religious institution will have to provide these services directly.” However, whether it is direct or indirect, forcing religious institutions to violate their faith is a violation of the First Amendment Free Exercise clause.

President Obama calls this a women’s health issue, but he misses the point. This is not a debate about what services women are allowed to obtain. It’s not a debate about what services businesses or insurance plans may cover. It is a debate simply about whether the government can force a religious institution to pay for something – directly or indirectly – that violates its religious beliefs. (Remember, even under the new “compromise,” the organizations would be paying for the insurance plans that carry with them the mandate to provide free contraception and abortion pills.)

Senator Blunt said it best:

It’s still clear that President Obama does not understand this isn’t about cost – it’s about who controls the religious views of faith-based institutions. President Obama believes that he should have that control. Our Constitution states otherwise.

Just because you can come up with an accounting gimmick and pretend like religious institutions do not have to pay for the mandate, does not mean that you’ve satisfied the fundamental constitutional freedoms that all Americans are guaranteed.

This was no compromise, and Planned Parenthood said as much. In a press release lauding the president’s statement, the president of Planned Parenthood stated that it “does not compromise a woman’s ability to access these critical birth control benefits.” I made it clear while I moderated a panel at the 2012 Conservative Political Action Conference (CPAC) that the latest “compromise” is not even worth our consideration.

As Senator Marco Rubio said at CPAC on Thursday, “This isn’t even a social issue. This is a constitutional issue . . . . . The federal government has no right to tell religious institutions to pay for things they believe are wrong.”

No religious institution, and no American, should be forced to choose between obeying the tenets of one’s faith and obeying the law.

This is an issue that has united both sides of the political isle and people of all faiths. Senators Rubio (R-FL) and Manchin (D-WV) have put forward a bill to revoke this regulation. Senator Manchin even sent a letter to President Obama urging him not to impose this mandate because “it was wrong and an encroachment on religious freedom and [the] Constitution.”

Senator Lieberman (I-CT), an orthodox Jew and former Democrat nomine for Vice President, tweeted, “I am opposed to the administration’s new requirement that religious orgs must offer employees contraception benefits . . . Government should not compel religious organizations to provide services contrary to their beliefs.”

This is a major problem for the president, and the American people, not just Catholics, are speaking out.

The ACLJ has been out in front on this issue, sending a letter to HHS months ago laying out the fact that this rule not only violates the First Amendment, it violates the protections afforded under the Religious Freedom Restoration Act. The letter states:

Not only Catholic groups but all people of faiths should be alarmed by this. The Administration’s narrow definition of ‘religious’ would exclude Jesus and his ministry and would have a devastating impact on the outreach efforts of religious organizations of all denominations. HHS must reverse this ill-considered and dangerous policy without delay.

We will continue fighting to defend religious freedom in America, through legislative efforts and, if necessary, in court.

One thing is for sure; the debate over this important issue will go on. Senate Minority Leader McConnell stated over the weekend that “this issue will not go away until the administration simply backs down.” In addition, the U.S. Conference of Catholic Bishops stated that President Obama’s “compromise”

continues to involve needless government intrusion in the internal governance of religious institutions, and to threaten government coercion of religious people and groups to violate their most deeply held convictions. . . . The only complete solution to this religious liberty problem is . . . to rescind the mandate of these objectionable services.

As Jay Sekulow, ACLJ Chief Counsel, told the crowd at CPAC, “There is no compromise with the free exercise of religion. ” This assault on religious liberty must be defeated.

This article, co-authored by ACLJ attorney Matthew Clark, is crossposted on Jordan's Washington Post blog, Religious Right Now, please register and leave a comment.