On the one hand, in the “contraception mandate” case was the best possible outcome given the insufferable state of the judiciary. On the other, the fact that religious institutions, and indeed all private businesses and organizations, have to grasp at straws and compromises to be allowed to operate according to their consciences demonstrates that the impetus for our founding is under attack and in need of an immediate resolution.
Yesterday, the Supreme Court issued a per curiam opinion remanding the contraception mandate cases back to the respective circuit courts they originated from in an effort to reach a compromise approach to not directly force religious institutions to cover (or be implicit in covering) abortifacients in their health insurance compensation packages. Of all the realms of outcomes, this was sadly the best one. Given the impervious wall of four anti-constitutional statists on the court, there was no way the court could have reached the proper conclusion — that pursuant to the First Amendment and RFRA, all employers have the right to run their organizations according to their religious beliefs and that free birth control is not a compelling governmental interest.
A 5-3 decision in favor of the administration would have codified anti-religious bigotry and violation of property rights into law. Similarly, a 4-4 split would have left all of the bad lower court decisions intact, sans the Eighth Circuit, which sided with the religious institutions [Sharpe Holdings, Inc. v. US DHHS, 801 F. 3d 927 (8th Cir. 2015)]. Thus, an agreement to rework these cases in the lower courts provides the religious institutions with another bite at the apple.
However, this “victory” is fleeting and illusory. That it can be in doubt and in need of a compromise for the government to threaten Catholic nuns with $70 million in fines for not covering abortifacients in their private compensation plans is scandalous. That taxpayer-funded birth control could be considered a “compelling governmental interest” by all but one federal appeals court – enough to burden private property and religious conscience rights — spells the death of our republic. (Aren’t we all warned about the low birth rates in this country anyway? Talk about governmental interest!)
Sure, the plaintiffs in this particular case might be able to survive by the skin of their teeth with some backdoor accommodation after spending years of time and money fighting for something that should be a given. But why should any business have to fund objectionable services.
This is not just about Catholics and birth control or even health insurance mandates. Businesses will be forced to fund sex-change operations. They will be forced to accommodate transgender bathrooms. No level of government should have the power to invade private property rights and coerce any social engineering or mandate any form of compensation. Yet, this is what happens when the government can force employers to pay for health insurance in the first place; they can now force them to cover objectionable services. As John Witherspoon so presciently warned, “There is not a single instance in history in which civil liberty was lost, and religious liberty preserved entire.” The statist mandates on private property rights are now being used to coerce social transformation and infringe upon religious liberty.
Irrespective of the outcome of this particular case, there is no escaping the fact that an overwhelming majority of judges in the lower courts interpret the Constitution and statutes on the most important political issues of our time in accordance with the platform of the Democrat Party. For every one temporary defensive victory we win at the Supreme Court, the lower courts will continue building enduring offensive victories for the left-wing social agenda. If this is how Catholic nuns are treated now, just imagine how things will look in ten years?
It’s time for Congress to pass civil rights style legislation with clear parameters protecting the religious liberty of all businesses and individuals against government coercion at all levels — federal, state, legislative, and judicial. The courts should have no role in these issues anyway. In a country founded upon religious liberty, and Judeo-Christian values in particular, those upholding this country’s deeply rooted traditions should not have to beg for crumbs at the high benches of the courts. The federal union was formed to protect liberty and property rights from state governments. It’s time for the people’s representatives to do their job.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.