The first counterattack on behalf of religious liberty has, perhaps, begun.
Earlier this month, Belmont Abbey College, a small, century-old Benedictine college in North Carolina that has deep devotion to its Catholic identity, sued the federal government for violating its rights to worship freely because of certain provisions of the 2010 Affordable Care Act, know as “Obamacare.” Among other things, the Act requires institutions to include the provision of coverage for abortion and contraceptives as part of their insurance plans. Providing such coverage would, of course, violate the Catholic principles of Belmont Abbey and countless other religious institutions.
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As has been widely reported, before filing this suit, Belmont Abbey struggled against the federal Equal Employment Opportunity Commission that had claimed the college was “discriminating” against women for not including such services in its insurance coverage. Remarkably, Belmont Abbey is almost the only Catholic educational institution to resist the act or similar laws that have been passed across the country at the state level. Georgetown University for example, shamefully submitted to a DC “human rights” law that goes further than even the Act in undermining its religious identity as a Catholic college. In Illinois, a formerly Catholic social-service agency broke with the Church to become unaffiliated with the Church in order to comply with a state law requiring foster agencies to consider same-sex couples. If this Act continues unchallenged, more colleges will have to decide whether to make Belmont Abbey’s brave choice.
Belmont Abbey’s complaint, filed in federal court in Washington, lays bare the combination of ideological leftism and crony capitalism that lay at the heart of the Act’s provisions. On the one hand, the act is directed toward religious institutions. There is no generally-applicable religious exemption. Rather, the Act exempts only those religious institutions that primarily employ people of the same faith, primarily serve people of the same faith, and whose primary purpose is the inculcation of religious values. This kind of exemption may exempt convents or monasteries, but it is a direct attack on the ability of the Church to perform the corporal (and most of the spiritual) works of mercy. Colleges, to say nothing of hospitals, hospices, or homes for the aged or disabled, have more than one purpose, and it is part of the Catholic mission to serve others, even those not of the same faith. Indeed, as William K. Thierfelder, President of the Abbey, stated the narrowness of the exemption “is directly at odds with the parable of the Good Samaritan, in which Jesus teaches concern and assistance for those in needs, regardless of faith differences.” One is tempted to think that perhaps the legislators and bureaucrats are simply ignorant that the responsibility of Christians to act for others is enjoined upon them by their faith; or perhaps they are all too aware.
There is no requirement, of course, that the government even grant such exemptions. And in formulating the regulations implementing the Act, as the complaint sets out, the government turned to anti-religious entities to advise it on which procedures should be included within the provisions, and basically ignored religious institutions that might have a different view. This sad legislative history is of a piece with similar laws being passed at the state level; in some instances, the legislative records makes clear that the targets of these laws are Catholic institutions, as the Church is usually the only alternative to state-run or secular institutions.
But of course some entities are more equal than others. As the complaint details, thousands of one-off exemptions to the rules have been granted, usually to big corporations or political supporters of the Democratic Party (such as big labor — oh how far we have come from labor being a bastion of Catholic workers, who might have resisted benefitting where the Church was being targeted). This system, as the complaint states, sets up what is in effect an arbitrary and capricious application of the law. If an entity has the ‘right” values or access to the right politicians, obtaining an exemption is apparently not a problem.
The substantive legal claims asserted by the College’s lawyers — the invaluable Becket Fund for Religious Liberty — rest primarily on the First Amendment and the Religious Freedom Restoration Act, as well as what is called the Administrative Procedures Act, which regulates how regulations such as that imposed here, should be applied. The strategy is the right one, as the complaint focuses on what should be obvious: these provisions are not narrowly-tailored to achieve a worthwhile end, such as improving healthcare, but in fact are designed to discriminate against religious groups whose beliefs put them at odds with the secular consensus. To force Belmont Abbey into compliance would place (as the legal standard has it) an “undue burden” upon it, and would force it to announce principles contrary to its faith. It should be clear, as the abbot of the college’s monks, Abbot Placid, stated, “Belmont Abbey College is not imposing its beliefs on anyone…. Contraceptives and sterilization are readily available to anyone. The college simply cannot pay for them and thus leaves them to the private decisions of individuals. Since it publicly presents itself as a Catholic institution, the college, if it is to operate with integrity, must conform to the public and authoritative teachings of the Catholic Church.”
This case is the test of the conflict between a coercive secular liberalism and religious freedom – not just of the Church but of all people of faith. As law professor Robert Vischer notes in his important recent book Conscience and the Common Good, the understanding of conscience that such laws propose is sharply at odds with American Constitutional tradition. The freedom to worship is a basic right, indeed the freedom of religion has been called “the first liberty.” That right requires the government to “make no law” that might infringe upon it. In contrast, the contemporary understanding of rights allows the government to intervene on behalf of one party asserting its “rights’ against another private party. The government weighs in on which “rights” it believes to be more important. Here, the Act essentially requires the government to force institutions to act contrary to their beliefs, in order to favor other groups. This approach — which the mainstream secular media hardly discusses — is potentially very dangerous to religious believers, who can no longer be secure that their freedom will not be infringed in the name of some other, secular value.