We Agree With the New York Times
It isn’t every day that we at the ACLJ find ourselves in agreement with the editorial board of America’s “newspaper of record.” In fact, it’s hard to remember the last time that happened. But in today’s Times we see that the paper is urging the Supreme Court to take up and resolve the important religious liberty issues raised in our Gilardi case. We agree. In fact, that’s why we filed a petition for certiorari in the case in practically record time following the D.C. Circuit’s decision last Friday.
In its editorial, the Times quotes the majority opinion of Judge Janice Rogers Brown who found that the Obamacare HHS Mandate “trammels the right of free exercise” under the Religious Freedom Restoration Act. The court made it clear that the Gilardi brothers are entitled to an injunction against the Mandate. At the same time the court found – in conflict with the 10th Circuit’s decision in the Hobby Lobby case -- that our clients’ companies themselves did not have any rights under the RFRA: and that’s the reason we are asking the Supreme Court to step in.
The Times also cites dissenting Judge Edwards who denied that either the Gilardis or their companies have any rights that the government needs to respect when it comes to this law that requires them to go against their religious beliefs. And the Times, siding with Edwards, urges the Supreme Court to resolve the conflict by “firmly rejecting the dangerous view that private employers can use their religious belief to discriminate against women. “
That, of course, is where we part company with the Times and the Obama Administration. The Gilardis are not discriminating against anybody. They are simply trying to run their business in a way that doesn’t conflict with their religion, just as they’ve always done. Their employees remain free to use their wages to pay for any services they want. They just can’t force the Gilardis to pay for abortifacients, contraceptives, and sterilization since paying for those things is against the Gilardis’ religion.
The supreme irony of all this is that, if anybody is really responsible for “preventing access” to payment for contraceptive services under the Mandate, it is the Obama Administration and HHS Secretary Sebelius themselves. How so? They are the ones who wrote into the Mandate a massive exemption for “grandfathered” health plans. That means if a plan didn’t include such coverage when the Affordable Care Act went into effect, the employer has the right to continue to exclude it forever. In addition, the Administration has exempted what it deems to be “religious employers” because – get this – Sebelius and the President say that forcing employers who have religious objections to paying for contraception to include it in their plans raises “religious liberty issues.” As more than one court considering challenges to the Mandate has observed, the Administration’s own exemptions from the Mandate – exemptions that “prevent access” every bit as much as the Gilardis’ – apply to something in the area of 191 million health plans!
In other words, while the Gilardi brothers – in keeping with their faith – currently fail to cover, at most, 395 people, the Obama Administration – for religious or non-religious reasons – is OK with failing to cover almost two-thirds of the population of the country. Where is the “The Gray Lady’s” outrage over that?
The Times is right in its main point. The Supreme Court of the United States does need to step in. The Court needs to resolve the religious liberty issues (as Obama and Sebelius call them) raised by the HHS Mandate. That way people like Frank and Phil Gilardi, Frank O’Brien, the Griesedieck brothers, and all of the other family business owners who have challenged the Mandate in court (40 at last count) can, once again, have secured the first right protected in our Bill of Rights – freedom of religion.