The Free Exercise cases Sebelius doesn’t know
posted at 2:32 pm on May 22, 2012 by Libby Sternberg
Now that 43 Catholic institutions have filed suit against the Department of Health and Human Services’ mandate that all health insurance policies must include contraception coverage, it seems an appropriate time to take a short walk down memory lane. Just a few weeks ago, Rep. Trey Gowdy (R-SC) questioned HHS Secretary Kathleen Sebelius about the extent of the department’s legal vetting of the mandate. The short answer: not so much.
The video clip of Gowdy’s masterful questioning of Sebelius floated around the conservative blogosphere, as well it should have. Sebelius’s lack of any knowledge of the cases Gowdy cited was hubris on display. The administration–at least her corner of it–obviously didn’t think they had to bother with constitutional issues, especially those pesky “separation of church and state” ones.
Sebelius’s reference to that separation when Gowdy pressed her on why the government couldn’t interfere in religious practices is telling. As many people know, those words don’t appear in the first amendment. In fact, the shorthand for the religious clauses of the first amendment are usually either the “Free Exercise” or “Establishment” clauses, depending on the legal issues at play.
I’m no lawyer, but I know this from my school choice advocacy days, when voucher litigation often involved First Amendment issues. In fact, because of that experience, I knew immediately the cases Gowdy referred to in his questioning, even remembering one of them by name (Wisconsin v. Yoder) because it involved a specific education issue. Yet Sebelius was completely ignorant of these cases? Not even a whiff of recognition of them or the issues they resolved? Really?
Okay, here’s the flashback, and after the video are brief descriptions of the cases Gowdy mentioned–and that anyone considering regulations involving religious institutions should have been at least marginally familiar with:
The cases Gowdy cites (with links to a legal site that provides explanations in laymen’s terms):
Wisconsin v. Yoder: (1971): Wisconsin’s truancy laws require children to be educated up until the age of 16. Members of the Amish religion, however, believe only an eighth-grade level education is necessary in order to adequately serve God. The court decided unanimously that the Amish’s religious beliefs trumped any “compelling interest” of the state to require two more years of education beyond eighth grade.
Church of Lukumi Babalu Aye v. City of Hialeah (1992). The city of Hialeah banned animal sacrifice as it became clear this animal-sacrifice religious group had moved into the area. The court decided unanimously the church’s Free Exercise clause rights would be violated by the city’s ban, which had been written almost exclusively targeting this particular faith.
Wooley v. Maynard (1976): When a Jehovah’s Witness decided that the New Hampshire motto, “Live Free or Die,” violated his relgious beliefs, he cut off the “or die” part from his license plate, leading to a conviction, jail time and a fine. In a 6-3 decision, the court ultimately found the state of New Hampshire had violated his Free Exercise rights.
Hosanna-Tabor Evangelical Church and School v. EEOC (2011): When a church employee was fired, she filed a complaint with the Equal Employment Opportunity Commission, which gave the green light to a lawsuit on the basis of her disability–she had been diagnosed with narcolepsy before the firing. The court, ruling unanimously, agreed with the church, however, that their employees were in “ministerial” positions, and the law grants exemptions for ministers, so that the state doesn’t interfere in any church’s governance.
This last case is the one you would have thought Sebelius would have been reasonably familiar with. It happened just a year ago. And it was UNANIMOUS, with even the liberal justices agreeing with Hosanna-Tabor’s religious freedom rights.
So was it arrogance or ignorance that made Sebelius unfamiliar with these cases? You decide.
Libby Sternberg is a novelist.