ERLC brief: Mandate harms religious freedom

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ERLC brief: Mandate harms religious freedom

Feb 22, 2013
By BP STAFF

WASHINGTON (BP)—The Obama administration’s abortion/contraception mandate still fails to safeguard religious freedom, the Southern Baptist Convention’s church-state entity and other evangelical Christian organizations have told a federal appeals court.

The Ethics & Religious Liberty Commission (ERLC) signed onto a friend-of the-court brief filed with the Seventh Circuit Court of Appeals Feb. 4, only three days after the administration announced a proposed rule change it seemed to hope would satisfy the objections of religious organizations. The brief, drafted by the Christian Legal Society (CLS), echoed the response of many faith and religious freedom groups, who described the revision as insufficient.

“The new definition continues to violate the—and now the equal protection clause—because the government continues to squeeze religious institutions into an impoverished, one-size-fits-all misconception of ‘religious employer,’” the brief said.

The abortion/contraception mandate “has unilaterally re-defined most religious employers to be non-religious employers,” according to the brief.

The mandate—issued as a rule by the Department of Health and Human Services (HHS) to implement the 2010 health-care law—requires employers to pay for coverage of drugs defined by the Food and Drug Administration as contraceptives, even if they can cause abortions.

Religious institutions and business owners with conscience objections to paying for contraceptives or abortion-causing drugs have challenged the mandate in more than 40 lawsuits against HHS.

The ERLC-endorsed brief filed with the Chicago-based Seventh Circuit focused on protections for religious organizations but came in a case involving a for-profit business and its owners, who refuse to comply with the HHS mandate. So far, for-profits that have challenged the rule have won injunctions blocking enforcement of the mandate 11 of 14 times.

In the brief, the ERLC and its allies joined CLS in saying the mandate’s definition of “religious employer” is narrower than a standing definition under federal law and violates not only the First Amendment but the Religious Freedom Restoration Act. That 1993 law bars the federal government from burdening religious free exercise unless it has a “compelling interest” and uses “the least restrictive means” in advancing that interest.

“Forcing religious employers to fund contraceptives and abortion-inducing drugs is hardly the least restrictive means of achieving the government’s purported interests,” according to the brief. “This is a solution in search of a problem. No one seriously disputes that contraceptives are widely available.”

The brief also questioned how the government would avoid “excessive entanglement” with religion under the mandate. The definition of “religious employer” fails to say how much agreement on religious beliefs a worker must have with an employer for the organization to qualify as a “religious employer.”

“The Supreme Court has repeatedly warned that government officials are not competent to make religious determinations,” it said.

“Religious liberty requires the government to give religious organizations breathing space to define what their mission will be, whom they will employ, and whom they will serve.”

The definition of “‘religious employer’ remains an unacceptably narrow religious exemption that fails to protect most religious employers, including colleges, schools, hospitals, homeless shelters, and food pantries,” according to the brief.

In a Feb. 1 announcement, HHS said its revised rule permits employees to receive contraceptives and abortion-causing drugs without their religious employer participating in the process.

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