Understanding the 1993 Religious Freedom Restoration Act
Friar Francisco Nahoe OFM Conv
No small part of the opposition to the Obama–HHS Contraception Mandate derives from the question of its constitutionality. Clearly, the 1993 Religious Freedom Restoration Act, signed into law by President Clinton, is one of the relevant laws for us to take into consideration in evaluating the legality of Obama’s attempt to force conscientious religious objectors to pay for contraceptives and abortifacients.
In Boerne v Flores (1997), the Supreme Court held that the RFRA was unconstitutional insofar as its application to individual State governments is concerned. Nonetheless, more recent High Court decisions (2006) affirm that the RFRA does indeed bind the Federal government. It is not at all clear that the Obama administration even considered the applicability of the RFRA before moving forward with the HHS mandate. Frankly, given the strident derision with which the current White House has regarded traditional religious concerns, this does not surprise me. Even so, the Administration’s astonishing disregard for Federal statute will, I predict, be the undoing of the present Obama policy.
In the past month, legal analyst Ed Whelan of the Ethics and Public Policy Center in Washington has posted extensively on the significance of the RFRA regarding the HHS policy of forcing religious organizations to cover contraception and sterilization in spite of their beliefs. Whelan notes that, “as the text of the Religious Freedom Restoration Act makes clear, there are four questions involved in determining whether the HHS mandate violates RFRA:
- Does a person engage in an exercise of religion when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients?
- Does the HHS mandate substantially burden such exercise of religion?
- Does application of the burden to the person further a compelling governmental interest?
- Is application of the burden to the person the least restrictive means of furthering a compelling governmental interest?”
Whelan goes on to argue quite persuasively that a careful application of these four tests to the contraceptive mandate makes it clear that the Obama-HHS decision will not pass judicial muster. While I strongly recommend that who follow this blog take the time to read Whelan’s posts carefully, I do want to underscore that the HHS itself concedes that religious institutions are engaged in the exercise of religion when they refuse to cover contraceptives and abortifacients. The unmistakeable correlative to this observation is that, although the Administration certainly recognizes that conscientious objectors to its policy are engaged in the exercise of religion, it just doesn’t care.
Throughout this debacle, the Obama administration has shown a mordent contempt for persons of faith, however piously the President may then present himself at White House Prayer Breakfasts. What’s at stake in this matter is more than the sum of religious liberty plus respect for law. Because religious liberty is the cornerstone of genuine democratic pluralism, the Obama-HHS mandate turns out to be an attack on the very diversity that makes possible a government of the people, by the people and for the people.
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