Green Room

The Free Exercise cases Sebelius doesn’t know

posted at 2:32 pm on May 22, 2012 by

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.

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Have never seen that clip before. That was brutal.

The Schaef on May 22, 2012 at 2:45 PM

So was it arrogance or ignorance that made Sebelius unfamiliar with these cases?

Taken in combination, the two are equivalent to “progressive”.

mr.blacksheep on May 22, 2012 at 2:48 PM

Thank you for that article. Very interesting. I didn’t know about any of those cases, either, except that last.

I suspect that Sebelius wasn’t the only one involved with ObamaCare that didn’t know about those either.

“Those who cannot remember the past are condemned to repeat it.” – George Santayana, The Life of Reason

sage0925 on May 22, 2012 at 3:08 PM

LOL…just watched the clip.

“We just made stuff up to defend this crap sandwich” – Sebelius

sage0925 on May 22, 2012 at 3:12 PM

I didn’t know about any of those cases, either, except that last.

I wouldn’t expect folks to be familiar with them…unless they had some reason to be. And Sebelius had reason. Yet she was clueless. It wasn’t that she didn’t know the details of the cases. She appeared completely ignorant of them altogether.

Libby Sternberg on May 22, 2012 at 3:34 PM

statists and tyrants don’t need legal precedents or the rule of law or the supreme court…

it’s quite clear that the current administration- filled with many a lawyer including the princess-in-chief (who supposedly ‘taught’ or ‘lectured’ on constitutional law)-does not believe in the constitution or the rule of law or democracy for that matter. why should they give a puck about any court ruling when they have zip respect for our entire constitutional republic. you don’t care when you rule by regal fiat.

mittens on May 22, 2012 at 4:11 PM

…unless they had some reason to be.

Libby Sternberg on May 22, 2012 at 3:34 PM

Well, I’m not what you’d call a religious person (Taoist), I’m certainly not Amish, though I do admire them in some respects, I don’t pay much attention to them, and I’ve never followed a religion that sacrifices animals…LOL

For Sebelius, desiring to impose her moral views, such as they are, on a religious group, and not researching possible issues and cases, was just plain ignorant. Thinking she could get everybody to go along with her with no questions asked, was just plain arrogant.

sage0925 on May 22, 2012 at 4:13 PM

Another thing that is striking about these cases is almost all are unanimous decisions.

FWIW, Gowdy gets a few details wrong on the Hosanna-Tabor one, but he did get the underlying issues right – why the church was not violating EEOC rules.

Libby Sternberg on May 22, 2012 at 4:20 PM

*sigh* With most politicians (even Democrats), you could offer a multiple-choice answer here in three parts:

A) Arrogance;
B) Ignorance; or
C) *Both* A & B.

Having survived life in Kansas under Kathleen, however, I’m compelled to add:

D) *NEITHER* A or B, because she’s so long accustomed to saying whatever suits her politics of the moment, i.e., lying, that absent a Vulcan mind-meld, it’s utterly impossible to know what she’s up to. But you can take it to the bank that, true or false, it’s meant to serve to her own advantage above all… anyone else up to and including the Pope can just pound sand.

“Ask not what your TEA Party can do for you…” ~ DeepWheat

DeepWheat on May 22, 2012 at 5:54 PM

I think they simply do what they want, and they figure the “compellingness” of the case will win the day. Who cares if something is against the Constitution, if enough people are screaming for it, then “somehow” it will stay the law.

And given the last 50 years, they are right. Look at Roe vs Wade. Look at how land has been seized, not for compelling interest, but to increase tax revenue. Look at the cases of Gun Control before Heller, hell Chicago is still fighting that one!

As Alinsky says, keep pushing till a negative turns into a positive.

Bulletchaser on May 22, 2012 at 6:28 PM

So was it arrogance or ignorance that made Sebelius unfamiliar with these cases? You decide.

I think at local levels you find more ignorance with a hint of arrogance. At the levels you are describing it is an absolute arrogance and the lack of humility that one might be wrong is astonishing. One of my favorite clips was Sen Rand Paul’s demolishing of an Energy Dept official over the overreaching, unconstitutional attempts to regulate individual choices.

DrRich on May 22, 2012 at 7:40 PM

I think the really telling part of any of her answers was her complete lack of knowledge of the Constitution – didn’t she have to take an oath to uphold it? She has no idea that the phrase “separation of church and state” is not even in the Constitution. Absolutely shocking.

ldenton1 on May 22, 2012 at 9:39 PM

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