Comments on the "New" HHS Mandate

Life has kept me overly busy the last few months so I have not been blogging, but with the April 8 deadline to submit comments to Health and Human Services (HHS) on the their new amendments to the Contraception Mandate, I had to sit down and put pen to paper.  I encourage all of you to comment at the government's website http://www.regulations.gov/#!docketDetail;D=CMS-2012-0031 . There are a number of good web sites that offer talking points or background on the issue, including the USCCB at http://www.usccb.org/issues-and-action/religious-liberty/ and the Becket Fund for Religious Liberty at http://www.becketfund.org/hhsannouncementcoverage.  I actually forced myself to read the amendment and my post today is a copy of the comments I sent to HHS...

I have just read, and have grave concerns on the impact of the amendment to the proposed rule for “Coverage of Certain Preventative Services under the Affordable Care Act” on our basic civil liberty of religious freedom.  The amendment appears to be little more than a tighter definition of religious organizations as “houses of worship” and it explicitly states its goal is to “not expand the universe” of exemptions on a rule that was already overly restrictive in its definition of religious organizations.  

At its core, I see this rule as an attempt to redefine the constitutional right to Freedom of Religion.  This right, which includes the Right to bear witness to one’s beliefs in the public square, is being recast into a much more restricted right to Freedom of Worship.  Since our founding, religious institutions have played a significant role in the public square, from helping serve the poor to taking heroic stands on social issues such as the abolition of slavery or the Civil Rights movement.  The HHS mandate on contraceptive services is forcing many of these faith based organizations, that are not explicitly “houses of worship” to decide whether they should continue witnessing their faith through service to the community or violate their conscience on critical issues of morality and faith.  The proposed amendment does nothing to protect faith based charitable organizations such as schools, hospitals and charities from the contraception mandate.

Additionally, the mandate does nothing to address the plight of individuals working in private enterprise who might object to contraception and abortion based on religious grounds.  With this rule, the government is effectively saying that if you want to operate a business, you must abandon your faith based convictions and facilitate actions which violate your conscience.  The word facilitate is of specific significance here, because the mandate is not asking private individuals to accept or tolerate certain behaviors they find objectionale because they are operating in a secular workplace; it is compelling them by law, with penalties for non-compliance, to facilitate behaviors which violate their conscience as a person of faith.  

Our laws allow a person to avoid military service as a conscientious objector based on either secular or religious convictions.  If we can make participating in the defense of our country optional based on conscience, why can we not protect a business person’s conscience when it comes to facilitating a woman’s choice to use birth control birth control or abortificants?  What has occurred in our legal system that suddenly allows the choice of one individual, in a very personal and private matter, to compel another individual to violate their conscience on the same issue?  The answer is nothing.  This rule is an extreme overreach of the federal government into a very personal aspect of its citizen’s lives.  It is not the role of the government to establish laws which dictate private moral behavior.  In doing so the government takes a step towards establishing a national religion, even if that religion is secular and morally relativistic.

The amendments to the HHS mandate for “Coverage of Certain Preventative Services under the Affordable Care Act” have done nothing to address the issues of religious freedom the original mandate created.  If anything the restrictions are more oppressive in their explicit restriction of the exemption to “houses of worship”.  Additionally, the mandate imposes a restriction on who can participate in private enterprise.  By excluding conscience protection for business people, talented entrepreneurs are forced to decide between creating jobs or violating their faith.  The HHS Mandate needs to be completely rewritten to include conscience protection for organizations and individuals of faith, wherever they might operate in the public square.

Archbishop Lori "Religious Freedom: A Catholic Perspective"

Here is a great talk from Archbishop William Lori on the subject of Religious Freedom from a Catholic perspective.  My wife Laura and I arranged this as the first in a series of talks at our home parish of St Mary's Church in Annapolis.

Churches and Tax Exemption

Last week I mentioned secularist attempts to target the tax exempt status of churches after the election.  On Sunday, November 12, Reuters published a story by Mary Wisniewski titled “Election Blurring of Church, State Separation Draws Complaints.”  The article details letters of complaint to the IRS from the groups Citizens for Responsibility and Ethics in Washington and the Freedom from Religion Foundation (FFRF).  Since this time, the FFRF has filed suit, according to an article on their website, against the IRS for allegedly violating the Establishment Clause of the First Amendment because they have not investigated churches who “electioneer” in violation of the tax code pertaining to 501(c)(3) organizations.  While the letters of complaint and the law suit target conservative elements of the Catholic Bishops and the Billy Graham Evangelistic Association, Ms. Wisniewski points out in her article that 40% of Black Protestants told the Pew Research Center that they had heard pro Obama messages from their clergy, so this is a bipartisan issue.

These suits bring up an interesting question.  Why should the tax exempt status of churches prevent them from speaking out on political issues?  Section 501(c)(3) of the tax code was developed to make it easier for charitable organizations to operate by removing tax burdens from them.  The idea was that these organizations save the tax payers money by providing services for the needy that the government would otherwise be required to perform. 

So why should a tax exempt status based on economic and fiscal efficiencies be used to limit an organization’s right to free speech?  The tax code allows other forms of non-profits much greater latitude.  Section 501(c)(4) and 501(c)(5) provides tax exempt status for Civic Leagues and Labor Unions, both of which have unlimited ability to electioneer.  As it turns out, the original law did not restrict 501(c)(3) organizations from speaking on political issues.  The law changed in 1954 when Senator Lyndon Johnson had the code amended to exclude these organizations from participating in or intervening in political campaigns.  The amendment targeted 2 non-profit organizations which opposed Johnson’s re-election bid to the Senate.  While the amendment was originally aimed Johnson’s political opponents instead of at churches, organizations like FFRF and People for the American Way have subsequently used the amendment to intimidate churches and silence their voice in the political arena.  The website for FFRP actually gives guidelines on how to report churches for violating the Johnson Amendment.

A growing number of clergy are questioning the IRS regulations through a movement called Pulpit Freedom Sunday.  The organization’s website,  www.speakupmovement.org, summarizes the goals of the movement as follows.  “The purpose of Pulpit Freedom Sunday is to restore the right of pastors to speak freely from the pulpit without fear of punishment by the government for doing what churches do: speak on any number of cultural and societal issues from a biblical perspective. The purpose of Pulpit Freedom Sunday is not – as some have intentionally tried to confuse the issue – about whether pastors should or should not “endorse” candidates.  The issue with which Alliance Defending Freedom is concerned is over who regulates what may be said from the pulpit.”  This last October 7, 1621 churches joined in the movement, in an effort to provoke a legal review of the law.  I highly encourage you to visit the Speak Up Movement’s website and read the summary of their legal arguments, FAQ and article entitled “Common Objections to Pulpit Freedom Sunday.”  In addition to providing excellent background, they show how the law as currently configured violates the Establishment Clause, the Free Speech Clause and the Free Exercise Clause.

If you were to read most articles or blogs on the tax exempt status of churches, you would be led to believe that the provisions placed on 501(c)(3) organizations are essential to the separation of church and state.  In reality, the provisions were the result of a blatantly political act of censorship by a powerful senator that has since become a tool for radical secularists to silence the voice of the religious in the critical issues of our time.  Indeed, as the secular agenda presses against moral issues which have traditionally been the domain of the church such as issues on life and the sanctity of marriage, it is impossible for churches to take a stand on the issues, without taking a position which is “political.”  So the FFRP is right in one aspect.  It is time to look at the IRS implementation of Section 501(c)(3); it is time to strike down the Johnson amendment.

3 Trends in the War on Religious Freedom

A couple of months ago, I gave a talk at the local Knights of Columbus on things to watch for in the war on religious freedom.  A number of people have asked that I summarize my talk, so here goes.

It’s important to realize that the war on religious freedom has been going on long before the current debate about the HHS mandate.  Radical secular humanists and atheists have been chipping away at the First Amendment’s Right to the Free Exercise of Religion for some time.  In particular, there are three trends we should all be aware of.  They are: 

1.       The re-branding of the First Amendment Right to Free Exercise
2.       The narrowing of the definition of what a religious institution is
3.       Attacks on religious institution’s tax exempt status and ability to get federal funding

Those of us who have been in the pro-life movement for some time will recall when the abortion industry chose to re-brand them self as “pro-choice”.  Prior to that time, it was difficult for people to say that they were not pro-life.  What was the alternative, pro-death?  Associating their position with the American ideal of “free choice,” enabled the abortion industry to re-cast their argument in a patriotic vein.  Similarly, President Obama and a number of other political leaders have been very vocal in their support of the “freedom of worship.”  The problem is that the Constitution does not mention a “free exercise of worship” it protects the “free exercise of religion.”  

In today’s vernacular, “freedom of worship” protects our rights to say what we want to say within the confines of the church in which we worship.  Once we enter into the world, the right to live our life in accordance with the conscience our faith dictates, vanishes.  In reality, the Constitution protects our right to live our faith through works of charity, without having to surrender our conscience.  That is a right that is under attack today with the HHS mandate and a number of other secular initiatives.  The re-branding of the First Amendment’s right to “the free exercise of religion” to the right of “freedom of worship” is the first step in the removal of our most fundamental right.

The second trend is a narrowing of the definition of religious organizations.  We see this in the HHS mandate which requires a religious organization to provide services primarily for members of its own faith.  This has a significant impact on faith based hospitals, religious schools, adoption agencies, homeless shelter and etc.  Unfortunately, this is not the first time the Obama administration has chosen this overly narrow definition of what constitutes a religious organization.  In this year’s Supreme Court Case of Hosanna Tabor vs EEOC, the Administration chose a similarly restrictive definition of religious organizations.  Thankfully the Supreme Court unanimously decided against the administration.  Never-the-less, it is disturbing to see two separate federal departments choose the same restrictive definition of what constitutes a religious organization and we must ask if this definition is in fact policy within the Obama administration. It should also be noted that under the Obama Administration's definition of religious organizations, Jesus and the Apostles would be defined as a secular organization because of their habit of providing services for the Gentiles.

The last trend to watch is the attack on the tax exempt status of religious organizations and their ability to compete for federal and state funds.  It is really hard to understand this line of attack as it appears to conflict not only the First Amendment Right to the free exercise of religion, but also the right to free speech.  The position seems to be rooted in an over emphasis of the establishment clause and Jefferson’s famous “wall between church and state” and a complete disregard of the free exercise clause.  There’s quite a bit we could talk about on this subject, but I will save it for now as it is getting late and I will be talking about this subject in a post tomorrow.  It has not taken long after the election for certain groups to start their attack on religious institutions for “violating their tax free status” by meddling in the elections.

At the end of the day, our right to freely exercise our religion is under attack by those who would force us to violate our conscience outside the doors of our houses of worship and those who would eliminate our ability to talk about our faith based principles in the public sphere the way secular organizations can talk about their non-faith based principles.  By re-branding “freedom of religion” to be equal to “freedom of worship” , opponents of religious liberty hope they will accomplish their aims while not violating the constitution.

The fight to protect our religious liberty will be long and tiring.  Be vigilant, stay strong, but above all, remember that love and faith is what separates us from those that wish to tear us down.