Saturday, February 18, 2012

Taking the Fight Back to the Court?

    In January, the Supreme Court ruled unanimously that federal discrimination laws do not impair the right of churches under the First Amendment to determine who may serve in ministerial positions.  This knockout punch to the Obama administration's position was met with fairly muted reaction from the left.  Without the support of even one of the court's liberal justices, there is little to be gained by publicly denouncing the outcome of the case.
    However, within two weeks of the court's decision, Secretary of Health and Human Services Kathleen Sebelius announced that rules governing health insurance mandates would offer no accommodation to religious institutions.  The requirement that birth control, contraceptives, and abortifacients be provided at no cost by all insurance plans understandably created a conflict of Biblical proportions.  The forthcoming "compromise" was no such thing in the eyes of many, and one has only to look at the whole-hearted supporters of the "compromise" (Planned Parenthood, Nancy Pelosi, Al Sharpton) to confirm it was hollow.
    Much of the debate in recent weeks has centered around the application of the mandate being a violation of the freedom of religious institutions by compelling them to facilitate behaviors that violate their principles and pay for them as well.  The "compromise" purported to allay those concerns but largely failed to do so.  But a potentially equally serious conflict lurks in this HHS-provoked controversy as well.  As long as the "compromise" is in effect, religious institutions, at least from the administration's point of view, have technical deniability for "conscience" sake.  But suppose a religious institution fires or disciplines an employee for moral reasons for using an abortifacient drug to end a pregnancy?  After all, it's a drug that is covered by a health insurance plan that they are providing to the employee.  How will the institution justify their actions?  Aren't they being forced into the position of saying to their employees, "Here's a benefit, but don't use it or you're fired"?  If religious institutions are lumped into the same category as secular ones, more lawsuits for wrongful termination of employment are inevitable.
    Contained in Robert's opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission is the following:
The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her.  Today we hold only that the ministerial exception bars such a suit.  We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.  There will be time enough to address the applicability of the exception to other circumstances if and when they arise.
The Obama administration apparently took that last sentence as a challenge.  Their broadside against religious freedom, barring a change in the Oval Office in November, has put the President and his policies on a collision course with the high court.  There will doubtless be skirmishes in the lower courts in the meantime, but it is difficult to imagine that ultimately a showdown revisiting the broader issues at stake in Hosanna-Tabor v. EEOC can be avoided.
    Although President Obama has been accused even by his supporters of backing down in various confrontations, this has not been the case in the realm euphemistically known as "women's health" even when religious liberties were at stake.  We can expect the President to have his game face on for this battle.  To paraphrase the President, a unanimous Supreme Court brought a knife to the fight.  President Obama will bring a gun.

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