ObamaCare Ruling Unconstitutional, Part 2

Of course, a conservative Congress or House of Representatives could thwart such an agenda by withholding funds or passing legislation that bars the Administration from spending tax dollars this way. This may be why the President turned to the private sector with an unfunded federal mandate “requiring coverage and by prohibiting cost sharing.”18 But even here the Administration could have pursued its interest in providing “greater access to contraception” without requiring the greatest access to contraception. The mandate could have applied only to non-religious health insurance plans, with the exemption for religious institutions made significantly broader so that it included institutions and organizations like schools, universities, and hospitals affiliated with religious organizations – another less restrictive means to a less-than-compelling end.

All of this assumes, however, that the birth control mandate is in fact a neutral and generally-applicable regulation. But neutrality here is not self-evident. As part and parcel of ObamaCare, the legislation and the HHS mandate is replete with waivers, exceptions, and exemptions that may or may not apply for a variety of reasons. The new rule does not apply equally to all health insurance plans, to all insurers, or to all individuals. For example, the mandate applies differently to employers with fewer than 50 employees; it does not apply equally to members of a “health care sharing ministry” that meet certain criteria; nor does it apply to employers who provide “grandfathered” health care plans. Furthermore, HHS has the authority to grant compliance waivers to employers or other insurance plan issuers, releasing them from compliance with the mandate and other provisions of ObamaCare. Ultimately, some secular and religious groups will be burdened with the mandate, and others will not.

Even more damning is the Administration’s crabbed attempt to exempt only those employers or religious organizations whose purpose is “the inculcation of religious values.” Such an exemption interjects the government agency as arbiter of which religious organizations or ministries “inculcate religious values,” and which do not. Unfortunately for the Administration, the Supreme Court has recently shown little patience for such meddling.

Just days before the HHS announcement last month, the Supreme Court handed down a unanimous decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, an employment discrimination case that focused on the “ministerial exception” and the First Amendment rights of religious institutions to appoint their own ministers free from government coercion. The opinion of the Court, authored by Chief Justice Roberts, and the concurring opinions, signed by Justices Thomas, Alito, and Kagan, strongly suggest that religious organizations will continue to enjoy wide latitude in conducting their own affairs and determining for themselves who represents the religion and serves its mission. As the Chief Justice noted, the Court’s previous decisions have held “that it is impermissible for the government to contradict a church’s determination of who can act as its ministers.”19

But this is precisely what the birth control mandate’s exemptions set out to do when it draws an artificial distinction between those arms of a church body that “inculcate religious values,” and those that do not. That is, under the mandate the government will decide which organizational bodies are “ministers” (or, generally speaking, the equivalent) and which are not. Does a Baptist high school “inculcate religious values”? Does a Lutheran university? What about a Jewish hospital? A Mormon charity? A Catholic soup kitchen paid for by the local parish, but run by and for members of all faiths in the community? Do these, too, not “inculcate religious values”? These are questions for bishops, deacons, pastors, and rabbis – not Washington bureaucrats.

In Hosanna-Tabor, the Court made clear that federal agencies should not be making those decisions, and that in fact the First Amendment does not tolerate such interference. All nine justices agreed:

By forbidding the ‘establishment of religion’ and guaranteeing the ‘free exercise thereof,’ the Religion Clauses ensured that the new Federal Government – unlike the English Crown – would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.20

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