Commentary Magazine


Topic: Gilardi v. Department of Health and Human Services

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.

Read More

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.

Read Less




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.