Commentary Magazine


Posts For: November 10, 2013

Religious Freedom Isn’t Discrimination

With the country focused on a dysfunctional website and President Obama’s lies and half-baked apology, an important development in the ObamaCare story was largely overlooked earlier this month. After years of litigation, the question of whether the Health and Human Services Department can enforce the ObamaCare mandate requiring employers to pay for services that violate their religious convictions moved a step closer to final resolution when the United States Court of Appeals for the District of Columbia issued a crucial ruling. In a 2-1 vote, the court rightly decided that the president’s signature health-care legislation violated the First Amendment to the Constitution by forcing owners of businesses to pay for insurance coverage for contraception or abortion-causing drugs. The case, Gilardi v. U.S. Department of Health and Human Services, one of many challenges to the mandate that have been making their way through the federal system since ObamaCare’s passage, may now come before the U.S. Supreme Court to decide the question once and for all.

The decision by Justice Janice Rogers Brown was an important blow struck for the cause of religious liberty. But it is telling that supporters of the mandate and the bill that created it are labeling the attempt to defend the rights of religious believers as an act of discrimination. That was the conceit of a New York Times editorial on the subject published Friday that asserted that what was at stake was the attempt by religious believers to impose their prejudices on their employees. As Justice Brown pointed out in her ruling, that argument doesn’t hold water. The fact that liberals are trying frame their attempt to impose a national health plan that will trample the rights of religious Americans is clear. But that the Times editorial page is so contemptuous of opposing views that it cannot conceive of the defense of religious freedom as anything other than an attempt “to discriminate against women” says more about the liberal mindset these days than it does about the plaintiffs in this case.

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With the country focused on a dysfunctional website and President Obama’s lies and half-baked apology, an important development in the ObamaCare story was largely overlooked earlier this month. After years of litigation, the question of whether the Health and Human Services Department can enforce the ObamaCare mandate requiring employers to pay for services that violate their religious convictions moved a step closer to final resolution when the United States Court of Appeals for the District of Columbia issued a crucial ruling. In a 2-1 vote, the court rightly decided that the president’s signature health-care legislation violated the First Amendment to the Constitution by forcing owners of businesses to pay for insurance coverage for contraception or abortion-causing drugs. The case, Gilardi v. U.S. Department of Health and Human Services, one of many challenges to the mandate that have been making their way through the federal system since ObamaCare’s passage, may now come before the U.S. Supreme Court to decide the question once and for all.

The decision by Justice Janice Rogers Brown was an important blow struck for the cause of religious liberty. But it is telling that supporters of the mandate and the bill that created it are labeling the attempt to defend the rights of religious believers as an act of discrimination. That was the conceit of a New York Times editorial on the subject published Friday that asserted that what was at stake was the attempt by religious believers to impose their prejudices on their employees. As Justice Brown pointed out in her ruling, that argument doesn’t hold water. The fact that liberals are trying frame their attempt to impose a national health plan that will trample the rights of religious Americans is clear. But that the Times editorial page is so contemptuous of opposing views that it cannot conceive of the defense of religious freedom as anything other than an attempt “to discriminate against women” says more about the liberal mindset these days than it does about the plaintiffs in this case.

Much is being made of the fact that Justice Brown ruled that companies owned by Francis and Phillip Gilardi—Freshway Foods and Freshway Logistics—do not have the right to challenge the mandate in their own right, as the plaintiffs in this case and other ObamaCare challengers have insisted. But by ruling that the owners have that right, that proves to be in practice a distinction without a difference. At the core of the case is the provision of the Religious Freedom Restoration Act, which forbids the federal government from placing a substantial burden on the free exercise of religion, even when a law is religiously neutral, except if there is a compelling government interest and has been crafted in such a way as to minimize restrictions on religious belief.

The government claims the ObamaCare mandate to enforce a universal right to free contraception and abortion drugs is just such a compelling government interest. But the plaintiffs rightly assert the mandate is an unconstitutional infringement on their religious liberty. As Justice Brown noted, “The Framers of the Constitution embraced the philosophical insight that government coercion of moral agency is odious.”

As the ruling states:

The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase— is a “compelled affirmation of a repugnant belief.” That standing alone, is a cognizable burden on free exercise. And the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their fait, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not “substantial pressure on an adherent to modify his behavior and to violate his beliefs,” we fail to see how the standard could be met.

It should be understood that by striking down the Mandate, the court is not allowing owners of businesses to prevent their employees from using contraception or having abortions. But, as Justice Brown ruled, extending that personal right to an entitlement to have one’s employer pay for such services, even when they clearly violate the religious beliefs of the individuals involved, “trammels the right of free exercise.”

But to liberal ObamaCare supporters like the Times, none of this matters because it impedes their vision of a national health-care system in which free contraception and abortion drugs must trump even fundamental constitutional rights. Religious freedom is not just a right to gather in houses of worship and pray but for citizens to be able to live their faith in the public square. Should the government ultimately prevail in this and related cases it would create a new, cribbed vision of religious freedom that would substantially restrict the ability of believers to practice their faith. 

The argument against putting health care in the hands of the federal government is substantial. But just as compelling is the fight that has been going on in the courts to stop the federal government from using this bill to trample on the rights of religious believers. One need not oppose contraception or even abortion—as the Catholic businessmen who are the plaintiffs in this case do—to understand that a broader principle that protects all Americans is at stake here. Let’s hope that Supreme Court takes up this case and finally rules to spike the HHS mandate and protect the religious liberty that ObamaCare is threatening.

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David Frum: COMMENTARY Is Reason’s Champion

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In a time of passion, COMMENTARY champions reason. Against lies, COMMENTARY speaks for truth. Confronting those who would doom to death the Jewish people, COMMENTARY is a magnificent continuing achievement of American Jewish life.

Help support COMMENTARY. Please click here to donate.

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Thank Heaven for the French?

Had Secretary of State John Kerry not been absolutely certain that a deal with Iran was about to be signed there’s no way he would have showed up in Geneva to take credit for what he thought would be a foreign-policy coup. Indeed, as reports tell us, he was not alone in that opinion as the Iranians, European Union foreign-policy chief, and just about everyone else there were just as sure the latest meeting of the P5+1 negotiating club would end in a celebration. But to their surprise—and to the relief of those in the United States, Israel, and moderate Arab states that were looking on in horror at an agreement that eased international sanctions on Iran in exchange for little if nothing from Tehran—the party was spoiled by an unlikely voice of reason: French Foreign Minister Laurent Fabius. As Britain’s Guardian notes today, Fabius’s “torpedoing” of the talks by his insistence on more concessions on both the Islamist state’s enrichment of uranium and their construction of a plutonium plant enraged the Iranians and frustrated Kerry and some of the other negotiators. While there is a lively debate about the French motive for their tough stance, those who care about stopping Iran from obtaining a nuclear weapon can only say thank heaven for the French.

Fabius’s unexpected decision to take a strong stand on details that Kerry had assumed would be swept under the rug the West was being sold by Iran exposed the flimsy nature of the consensus in favor of the proposed deal. Critics of the deal were worried that the Iranian agreement to freeze enrichment would be easily evaded and that the West’s move to start to ease sanctions would start a process that would lead inevitably to the collapse of sanctions regardless of what Iran did. In response, supporters of the accord seemed less interested in the actual terms of the accord than they were in the idea of finally getting the Iranians to sign on to anything. For them the act of diplomacy was the thing they cared most about since any deal would make the use of force—by the U.S. or Israel—unthinkable and lock the international community into a process where Iran would become their partner rather than an outlaw to be curbed.

While Kerry is trying to act as if there was no failure but merely a delay, the failure of the talks leaves open the question as to whether the next meeting will enable Kerry to get his photo-op. Yet by standing up to the Obama administration, Fabius may have created a dynamic that will not allow the U.S. to look weaker than the French.

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Had Secretary of State John Kerry not been absolutely certain that a deal with Iran was about to be signed there’s no way he would have showed up in Geneva to take credit for what he thought would be a foreign-policy coup. Indeed, as reports tell us, he was not alone in that opinion as the Iranians, European Union foreign-policy chief, and just about everyone else there were just as sure the latest meeting of the P5+1 negotiating club would end in a celebration. But to their surprise—and to the relief of those in the United States, Israel, and moderate Arab states that were looking on in horror at an agreement that eased international sanctions on Iran in exchange for little if nothing from Tehran—the party was spoiled by an unlikely voice of reason: French Foreign Minister Laurent Fabius. As Britain’s Guardian notes today, Fabius’s “torpedoing” of the talks by his insistence on more concessions on both the Islamist state’s enrichment of uranium and their construction of a plutonium plant enraged the Iranians and frustrated Kerry and some of the other negotiators. While there is a lively debate about the French motive for their tough stance, those who care about stopping Iran from obtaining a nuclear weapon can only say thank heaven for the French.

Fabius’s unexpected decision to take a strong stand on details that Kerry had assumed would be swept under the rug the West was being sold by Iran exposed the flimsy nature of the consensus in favor of the proposed deal. Critics of the deal were worried that the Iranian agreement to freeze enrichment would be easily evaded and that the West’s move to start to ease sanctions would start a process that would lead inevitably to the collapse of sanctions regardless of what Iran did. In response, supporters of the accord seemed less interested in the actual terms of the accord than they were in the idea of finally getting the Iranians to sign on to anything. For them the act of diplomacy was the thing they cared most about since any deal would make the use of force—by the U.S. or Israel—unthinkable and lock the international community into a process where Iran would become their partner rather than an outlaw to be curbed.

While Kerry is trying to act as if there was no failure but merely a delay, the failure of the talks leaves open the question as to whether the next meeting will enable Kerry to get his photo-op. Yet by standing up to the Obama administration, Fabius may have created a dynamic that will not allow the U.S. to look weaker than the French.

Why did the French disrupt Kerry’s plans? It’s hard to say. The Iranians claimed Fabius was “acting as a servant of the Zionist regime.” Some might put it down to the French impulse to oppose anything the U.S. wants, even if it forced them to take a tougher stand while they normally prefer softer approaches to confronting Iran and other Islamist forces. But whatever Fabius’s motives might have been, what he has done is to draw attention to the fact that Kerry and Co. were rushing to make a deal without nailing down the details about what the Iranians are expected to do.

Kerry has defended this process and pretended that what he was about to sign was a good deal. He believes that by taking halfway measures he is advancing the cause of stopping the Iranians. He thinks talking to the Iranians has a value in itself and worth the price of chipping away at sanctions. Those who support this process claim that those who call for a complete shutdown of the Iranian nuclear program are unrealistic. But the real lack of realism stems from those who ignore the Iranian history of cheating on the nuclear issue and who think this time will finally be different.

The point here is that contrary to Kerry’s rhetoric, this is not a labor negotiation in which both sides must be allowed to walk away with something and a solution always lies in splitting the difference between the two sides. Any Iranian deal that doesn’t definitively end their chance of building a weapon, whether via uranium or plutonium, is a scam, not a diplomatic triumph. Insistence on this point doesn’t make the deal’s critics warmongers. It makes them realists.

It can only be hoped that the pause between this weekend and the next P5+1 meeting will stiffen the spines of the Western negotiators rather than making them more eager to give away the store. For that opportunity, we should be grateful to Fabius. Indeed, with most of the focus in recent weeks on whether to strengthen rather than weaken sanctions, the rush to a deal in the days leading up to the Geneva meeting happened without a full debate about its terms. It’s not just that the administration can’t justify being weaker on Iran than France. Kerry’s deal cannot stand up to scrutiny.

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