Zubik v. Burwell
By Michael F. McLean, Ph.D.
President of Thomas Aquinas College
On March 23, the Supreme Court of the United States will hear oral arguments in Zubik v. Burwell, a consolidated lawsuit against the HHS Mandate. Thomas Aquinas College, where I serve as president, is one of the 35 plaintiffs in the case, which includes the Little Sisters of the Poor and The Catholic University of America, among others. The College objects to the Mandate’s requirement that we provide coverage to our employees for contraceptives, abortifacients, and related services because the Catholic Church teaches that their use is gravely immoral.
Some are surprised that we have found it necessary to engage in this lawsuit, citing the exemption from the Mandate that exists for religious institutions. What is not widely known is that the Obama Administration has in this case drawn the religious exemption more narrowly than ever before, restricting it almost exclusively to churches. In effect, the Administration is treating the 1st Amendment as though it guarantees us only a right to worship in a church, not, as it indeed does, a right to exercise our faith in our public lives.
Schools, hospitals, and other Catholic organizations that take seriously their Catholic identity have thus been put in an untenable position: We must either comply with a government mandate and act against our deeply held religious beliefs, or suffer crushing financial penalties — in our case, up to $3 million annually.
While the Administration has put forth an accommodation that it claims will relieve objecting institutions from complicity in delivering the objectionable coverage, it is illusory at best. The accommodation requires that an objecting institution not only notify the Department of Health and Human Services of its objection to the Mandate, but that it also transmit key information about its insurer — without which the government cannot provide the coverage in question. And “there’s the rub,” to quote Shakespeare’s Hamlet. Because the government cannot provide the objectionable coverage without an action on our part, it is clear that our action would facilitate the coverage. Yet that is the very thing we cannot do.
On March 23, our attorneys at the Jones Day law firm will offer a compelling argument demonstrating that the HHS Mandate violates our right of religious liberty under the Religious Freedom Restoration Act (RFRA), signed into law in 1993 by President Clinton. They will show that the Mandate fails RFRA’s two requirements for government when it passes and executes legislation: 1) that it have a compelling interest in accomplishing its goal and 2) that it employ the least restrictive means of achieving that goal.
To the first, the government has already granted exemptions to numerous large companies such as Exxon, Visa, and Chevron, to large municipalities such as New York City, and to many more. In fact, there are currently millions of U.S. citizens with health plans exempted from the contraceptive mandate, proving that the government’s interest is clearly not “compelling.” To the second, there are numerous possible alternative methods for providing the objectionable coverage without forcing religious institutions to be part of the process.
The stakes are high not only for the 35 plaintiffs in this case but for all Americans. Should the Supreme Court uphold this Mandate, a precedent will have been set for curtailing the free exercise of any and all religions.
There is a reason that the right of religious liberty is first among all others enumerated in the Bill of Rights. Our founding fathers recognized that our country’s success would depend upon a vibrant religious life among its citizens. Our nation’s first president explained it thus: “While just government protects all in their religious rights, true religion affords to government its surest support.”
On March 23, the students, faculty, staff, alumni, and friends of Thomas Aquinas College will observe a day of prayer and fasting that our arguments might prevail at the United States Supreme Court. We invite all who love our country and cherish religious liberty to join with us.