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Priests, Pastors, Presidents and Nuns before the U.S. Supreme Court in Zubik v Burwell to Defend Religious Freedom

By Deacon Keith Fournier
3/23/2016 (1 year ago)
Catholic Online (

The petitioners represent Christians from across the confessional spectrum

The HHS mandate requires employers to include in their organization's health insurance plan coverage for abortion-inducing drugs, contraceptives, sterilization, and related counseling violates the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment. The priests, pastors Presidents and nuns who were hauled before the US Supreme Court in Zubik v Burwell are heroes, defending Religious Freedom, and they should prevail.

The exterior of the United States Supreme Court

The exterior of the United States Supreme Court

WASHINGTON, DC (Catholic Online) The case was heard before the remaining eight Justices of the United States Supreme Court on March 23, 2016. It is styled Zubik v. Burwell, because it bears the name of the Bishop of the Roman Catholic Diocese of Pittsburgh, Pennsylvania and Sylvia Matthews Burwell, the Secretary of the US Dept. of Health and Human Services.

The case was consolidated with  seven other cases, Priests for Life v. Burwell, Southern Nazarene University v. Burwell, Geneva College v. Burwell, Roman Catholic Archbishop of Washington v. Burwell, East Texas Baptist University v. Burwell and the Little Sisters of the Poor Home for the Aged v. Burwell.

This reflects the broad array of petitioners who have been hauled before the Highest Court in the Nation to defend against the unconstitutional action of a federal administration seeking to compel them to violate their deeply held religious convictions. They include evangelical protestant pastors, Christian College Presidents, Fr Frank Pavone and the Priests for Life, and the Little Sisters of the Poor. They are all heroes for the cause of Religious Freedom - and they should prevail. 

The issue argued before the Court was whether the Affordable Care Act (AFA), in its mandated coverage of contraception (some of which induces abortion) and its purported accommodation which was really no accommodation, violate the Religious Freedom Restoration Act (RFRA). The effect of such a violation would also be to violate the Free Exercise Clause of the First Amendment to the Bill of Rights to the US Constitution. It would force religious nonprofits to act in violation of their sincerely held religious beliefs.

The Religious Freedom Restoration Act (RFRA) was passed in 1993 and is often used when a legal issue concerning the Free Exercise Clause of the First Amendment to the Bill of Rights is at issue. Religious Liberty, a fundamental human right recognized in the First Amendment to the Bill of Rights, provides the constitutional backdrop for the Religious Freedom Restoration Act (RFRA).

The First amendment begins with these words, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For the government to prevail in such a case, they must show that the complained of burden upon the free exercise of religion was necessary because there is what is called a compelling government interest which must be protected.

Next, the Government must show that the burden on the Free Exercise of Religion which will result is the least restrictive means of accomplishing that protection. The Religious Freedom Restoration Act (RFRA) requires the application of a standard of review by the Court in reviewing that case. It is the highest standard of review, called strict scrutiny.

When Congress passed the Affordable Care Act (ACA) it did not exempt it from the requirements of RFRA - and most certainly had no authority to violate or abrogate the First Amendment of the Bill of Rights.

The First Amendment stands for the existence of a Fundamental Right to the Free Exercise of Religion for all men and women, and all associations. It was intended to prevent anyone from being compelled to surrender their deeply held moral and religious beliefs outside of the walls of their chosen church or place of worship by the government. 

It is called the Free EXERCISE of Religion and not the Freedom of worship, for good reason. It is intended to protect the full expression of the values informed by religious faith in service to the community and the common good.  An exercise of religion is anything a person does or refuses to do for religious reasons, in any aspect of their life.

In this matter, the free exercise of religion protects the right of these petitioners to offer health insurance in accordance with the tenets of their Christian faith. It should also defend them against  governmental coercion to provide coverage for the objectionable 'services' or face be shut down. That would be the net effect - if the punitive approach of the current Federal administration prevails.

The petitioners represent Christians from across the confessional spectrum. The multitude of Friend of the Court (Amicus) briefs filed with the Court demonstrate that the support for the position argued by the petitioners extends way beyond the Christian community. It concerns the fundamental right to the Free Exercise of Religion.

If the Affordable Care Act (ACA) itself does not have exemptions from RFRA, certainly the regulations issued by the Department of Health and Human Services intended to implement the Act must also comply with RFRA. The Obama Administration has granted multiple exemptions to the HHS mandate.

Churches ('houses of worship') are exempt, as are employers whose insurance plans have been 'grandfathered' into the ACA and -- for administrative convenience -- do not have to be amended to include the coverage of the services the petitioners object to. These exemptions affect tens of millions of employees. Some who are exempt from the HHS mandate are exempt for reasons that have nothing to do with religious conviction.

The mandate also irrationally divides religious believers into two categories. The very way it distinguishes those who must follow the mandate from those who are exempt has nothing to do with religion but the classifications of the religious organizations within the Internal Revenue Code. 

So, for instance, Catholic Charities of the Diocese of Erie is exempt from the mandate because it is part of the corporate structure of that particular diocese. Catholic Charities of Pittsburgh, however, is not exempt, because it is incorporated separately from that diocese. The HHS mandate has overstepped its authority and violated RFRA by protecting the free exercise of some believers but not of others.

On Monday, June 30, 2014, the United States Supreme Court issued its decision in the Hobby Lobby Case. Closely held corporations cannot be required to provide abortion inducing contraception coverage under the HHS Mandate to the Affordable Care Act. The issue should be very clear in the present case involving not for profit corporations and associations. 

It must be remembered that when the Bill of Rights was enacted there was no Internal Revenue Service. The current structure of corporate law, such as the distinction between a corporation being considered nonprofit or for profit, did not exist.

Some of the contraceptive devices and forms of contraception they refuse to provide under their health care plans can kill embryonic human persons. They can kill human life after conception.   Because the petitioners are classical, faithful Christians, they cannot and will not be complicit in the taking of human life, at any age or stage of life. They stand by the teaching of the Bible and the unbroken Christian tradition that it is always and everywhere immoral to take innocent human life.

As a Catholic Christian, I stand in complete solidarity with these petitioners. So should every Catholic Christian who may be reading this article. In 2008, in an instruction on the dignity of the human person, the teaching magisterium of the Catholic Church offered clear words reaffirming the dignity of the embryonic human person.

The previous year, in a direct response to a specific question on the matter, the Congregation for the Doctrine of the Faith gave explicit instructions in response to certain questions. Here is one: "What Respect is due to the human embryo, taking into account his nature and identity?" Here is the answer given by the Magisterium: "The human being must be respected - as a person - from the very first instant of his (her) existence."

Not only is respecting and protecting human embryonic life a matter of a deeply held religious conviction, but Catholic Christians, who understand the teaching of their Church, insist that this prohibition is binding on all men and women through the Natural Moral Law. That is because the other Right at issue, in addition to the Right to Religious Freedom, is the fundamental Right to Life of the Human Embryonic person.

That Right is denied whenever they are intentionally killed. Pope Emeritus Benedict told the United Nations in 2008: 

"Human rights, in particular the right to life of every human being "are based on the natural law inscribed on human hearts and present in different cultures and civilizations. Removing human rights from this context would mean restricting their range and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary and their universality would be denied in the name of different cultural, political, social and even religious outlooks. This great variety of viewpoints must not be allowed to obscure the fact that not only rights are universal, but so too is the human person, the subject of those rights."

In the 2008 Instruction mentioned above the Catholic Church also noted that this position of defending the Right to Life of the embryonic human person is a part of her constant and consistent Social Doctrine and concern for all of the poor:
"Just as a century ago it was the working classes which were oppressed in their fundamental rights, and the Church courageously came to their defense by proclaiming the sacrosanct rights of the worker as person, so now, when another category of persons is being oppressed in the fundamental right to life, the Church feels in duty bound to speak out with the same courage on behalf of those who have no voice. Hers is always the evangelical cry in defense of the world's poor, those who are threatened and despised and whose human rights are violated."

"In virtue of the Church's doctrinal and pastoral mission, the Congregation for the Doctrine of the Faith has felt obliged to reiterate both the dignity and the fundamental and inalienable rights of every human being, including those in the initial stages of their existence, and to state explicitly the need for protection and respect which this dignity requires of everyone."

The HHS mandate requires employers to include in their organization's health insurance plan coverage for abortion-inducing drugs, contraceptives, sterilization, and related counseling violates the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment. The priests, pastors Presidents and nuns who were hauled before the US Supreme Court in Zubik v Burwell are heroes, defending Religious Freedom, and they should prevail.

Deacon Keith A. Fournier is the Founder and Chairman of Common Good Foundation and Common Good Alliance. A Catholic Deacon of the Diocese of Richmond, Virginia, he and his wife Laurine have five grown children and seven grandchildren, He is a human rights lawyer and public policy advocate who has long been active at the intersection of faith and culture.He served as the first and founding Executive Director of the American Center for Law and Justice in the nineteen nineties and is now Special Counsel to Liberty Counsel and Chief Counsel to the Common Good Legal Defense Fund. He is the Editor in Chief of Catholic Online, a senior writer for THE STREAM and a featured columnist for the Catholic News Agency.


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