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Protection of Conscience Project

Service, not Servitude
Legal Commentary

Lines Crossed: Separation of Church and State.

Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?

US House of Representatives
Committee on Oversight and Government Reform

16 February, 2012

Testimony of Dr. William K. Thierfelder
Belmont Abbey College

. . .because this Administration realized it couldn't force a Catholic College to distribute contraception through the courts, and of course any such mandate wouldn't pass through Congress, the Obama Administration is now trying to coerce us through an administrative rule.

[PDF File]  Thank you, Mr. Chairman, for holding this very important hearing into an issue which has become front and center for this country in the past several months, and which is ignored at the peril of our religious freedom. I would also like to thank the Becket Fund for Religious Liberty, which represents my institution, Belmont Abbey College, in its fight against the Obama's Administration's very dangerous mandate.

When the mandate was issued in August 2011, we were stunned. Belmont Abbey College, which was founded in 1876 by Benedictine Monks, is affiliated with the Roman Catholic Church and the Order of St. Benedict. We are unwavering in our belief that contraception, sterilization, and abortion are against God's law. This is what we teach our students. We believe it is a sin for us to facilitate access to these services through the funds of our religious college. Providing contraceptive services, abortifacients, and sterilization - and the education and counseling that go along with such services mandated by the government - is a violation of our conscience. This is a violation that we refuse to make. And yet, that is precisely what we will be forced to do under the Health and Human Services mandate. That is why, Belmont Abbey College, with the help of The Becket Fund for Religious Liberty, filed the first lawsuit against the government to challenge this violation of our freedom of religion.

Many have noted that this mandate fits into a pattern of actions this Administration has taken that show hostility toward religious liberty. We at Belmont Abbey College know this story first hand. Three years ago, in the early months of this Administration, the Equal Employment and Opportunity Commission (EEOC) made Belmont Abbey College the first religious organization ever targeted by the federal government for not covering contraception in our employee health care plan. The EEOC said that by remaining true to our Catholic beliefs we were guilty of "gender discrimination." They then sat on their hands and refused to issue a final determination on our case. They have left us in limbo, with an EEOC investigation hanging over our heads, for more than two and a half years.

Why has the EEOC refused to move forward in our case, we've wondered? No doubt it's because they knew their aggressive interpretation of Title VII would not hold up in court. In fact, the only federal appeals court to hear this issue held that the EEOC was wrong-Title VII does not require employers to cover contraceptives (In re: Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007)). And that is even before you get to the constitutional alarms that go off when the government tries to punish religious groups for following their convictions.

So because this Administration realized it couldn't force a Catholic College to distribute contraception through the courts, and of course any such mandate wouldn't pass through Congress, the Obama Administration is now trying to coerce us through an administrative rule. While the Administration's tactics have changed, our convictions have not - and as much as they'd like us to "adapt" them in the next year, they will remain firm.

With the help of The Becket Fund, Belmont Abbey College is fighting the HHS mandate in federal court. Our lawsuit sets forth not one, but multiple, claims to show how this mandate violates our rights under the Constitution and federal law.

For instance, we have challenged the mandate under the free exercise clause of the First Amendment because it pressures Belmont Abbey College to violate its religious beliefs by forcing it to choose either to follow its conscience or suffer substantial fines and competitive disadvantages in the employment market.

We have also challenged the mandate under the free speech clause of the First Amendment because it compels Belmont Abbey College to subsidize drugs and procedures that it teaches are immoral, and furthermore compels us to provide our employees with education and counseling on how to violate Church teaching.

We also have a substantial burden claim under the Religious Freedom Restoration Act because of the substantial burden it places on us if we are forced to pay an annual fine for all of our employees for not buying health insurance that violates our conscience. These fines could be $300,000 annually.

The administration offered what it seemed to think was a nice gesture on January 20th, when it gave those religious organizations that do not qualify for the exemption an extra year to comply. An extra year to learn how to violate our conscience and betray our deepest religious principles. I've explained this as akin to being told, "We know you use oxygen to breathe, so we're going to give you an extra year to figure out how to breathe without it, and we hope by then you've adapted." Our religious beliefs and principles - and our freedom to express them without government interference - are as importance to us as the air we breathe. They are not something we are prepared to abandon in a year's time because the government says we have to.

We have been asked about the impact on our case of President Obama's announcement of a "compromise" on Friday, February 10th. The answer is that it has no impact whatsoever on our lawsuit, because the compromise did not in fact make any change to the mandate issued in August.

We have been asked about the impact on our case of President Obama's announcement of a "compromise" on Friday, February 10th. The answer is that it has no impact whatsoever on our lawsuit, because the compromise did not in fact make any change to the mandate issued in August.

First, nothing in this accommodation offered by the President clarifies or expands the group of religious organizations which qualify for the exemption from the mandate. With the original mandate in August 2011, President Obama created two tiers of religious groups. The first tier, the organizations that qualify for this exemption, are religious groups who primarily serve and employ members of their own faith. On the second tier are organizations that serve the broader community by providing social services, education, and employment to people from outside their direct faith group. These organizations - including Belmont Abbey College - do not qualify for the religious exemption. We are punished for providing services for people of other faiths by being forced to violate our conscience.

And I won't even get into the impact on all of those individuals who self-insure, run small businesses, and who object to this intrusion on their conscience and aren't even considered by this Administration as "religious enough" to have their religious beliefs protected.

The attempt by the current Administration to narrow the definition of what constitutes a religious group is part of a larger trend of erosion of religious freedom in this country. This was seen most strikingly in the Hosanna-Tabor case, also argued by the Becket Fund, in which the Supreme Court of the United States unanimously rejected the administration's extremely narrow interpretation of religious freedom. It is also seen in the willingness of the administration to enforce this mandate, even if it were to result in the forced closure of religious charities that provide essential services to the needy.

Second, the announcement last week was merely an accounting gimmick and changes nothing in the mandate. Supposedly, instead of religious organizations paying for the contraceptive services, now the President intends to pass this on to the insurance company who will pay for them. But, of course, we're the ones paying the insurance company. So, if he somehow gets this through some rule-making procedure, he's essentially opened a whole new can of worms related to the rights of those insurance companies and our continued objection to providing insurance that covers these objectionable things.

The core issue of the mandate remains: religious groups are still forced to purchase a product that provides contraceptive services. Religious groups are still not allowed the option to provide health care that is consistent with our religious beliefs. And we will still have to pay a substantial fine if we don't do this, in violation of our conscience. It's a no win situation.

I joined a group of over 300 renowned academics, university professors, presidents, deans, and board members, journalists, and lawyers who signed our names to a letter denouncing the HHS mandate and the President's unacceptable "accommodation" as announced on Friday. The signators of this letter include Christians of all denominations, Jews, and Muslims, who have come together to protest the administration's grave violation of religious freedom. This is an issue which does not simply affect the "Catholic bishops," as the media seems to portray. Any time the government so blatantly disregards the constitutional rights of the people, it affects all Americans who value the First Amendment and the right to freely practice our religion without interference by the government.

It should be telling that so many people, from so many political and religious groups, have spoken out about this egregious violation of the freedom of conscience. It should indicate to the administration that it is unacceptable to give people of faith a false choice - either abide by the government's rules, or abide by your own rules and suffer the very substantial consequences.

Our nation's founders believed strongly in the important place of religious institutions in American society and the need for those institutions to remain independent of governmental control. Religious freedom was enshrined in the First Amendment, guaranteeing the right for freedom of belief and freedom of exercise. But now, religious institutions are being pushed out of the public sphere, our practices increasingly regulated by government policies. The right of individuals and groups to hold certain religious beliefs and live our lives according to those beliefs is being eroded. Belmont Abbey College and the Becket Fund are not simply fighting a contraception mandate; we are fighting to maintain our inalienable right to freedom of religion, the first freedom. When we lose the freedom to believe, we have lost all freedom.

Thank you.

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