Zubik vs. Burwell

Friday, March 18, 2016 - Updated: 6:00 am

It’s something I never expected in my life. Yet here I am, a guy from a small town in Beaver County, Ambridge, and I have a Supreme Court case named after me. It is formally called “Zubik vs. Burwell,” and the Supreme Court will hear the oral arguments this Wednesday — Wednesday of Holy Week, March 23.

Before I am tempted to get too puffed up about it, let me explain. The name of the case is legal shorthand for several cases grouped together, including the Diocese of Pittsburgh, the Little Sisters of the Poor, the Diocese of Erie, the Archdiocese of Washington, Geneva College and some others. We are all defending religious freedom from government intrusion.

In a nutshell, this case arose when the federal Department of Health and Human Services decided to mandate that employer health plans provide medical coverage for contraception, sterilization and abortifacient drugs and devices. (The “Burwell” in “Zubik vs. Burwell” refers to Sylvia Mathews Burwell, the current secretary of Health and Human Services.)

While narrowly drawn exemptions were made for certain religious entities — such as houses of worship — most Catholic institutions and other religious employers were ordered to comply with this mandate. This includes Catholic Charities of the Diocese of Pittsburgh and many other Catholic social services, schools, hospitals, homes for the aged and other institutions.

The day the mandate was announced a number of people raised the red flag, yours truly among them. This I did not do just in my own name, but in the name of, and on behalf of, the Diocese of Pittsburgh.

In response to the outcry of many non-Catholics, non-Christians and Catholics alike, the federal government attempted an “accommodation.” This “work-around” would allegedly relieve faith-based entities from paying directly for the objectionable services. An undetermined third party would pay for the coverage. (The government says, “Just sign the paper,” to authorize such a third party. Remember, the same was asked of the great 16th-century lawyer, Thomas More, by the king of England, Henry VIII: “Just sign the paper!”)

We couldn’t accept this “accommodation.” The “work-around” would require the faith-based agencies to directly cooperate with the contraceptive mandate by filling out forms and providing names. We would be required to facilitate and cooperate with the provision of drugs, devices and procedures that we have long deemed immoral.

Let’s be honest. A lot of folks have tried to frame this as a “Catholic” issue. Certainly, HHS’s demand for most religious employers to provide contraceptive coverage was seemingly the issue — the “causative factor.” But the mandated regulations and HHS’s attempt to enforce them by threatening crippling fines on faith-based agencies is a dangerous and immediate threat to the religious freedom of all Americans.

Protect religious freedom

Early in this controversy when I discussed the mandate with local religious leaders of other traditions, they initially saw it as something that would affect the Catholic Church alone. But they quickly came to understand that much more was at stake. I asked them to think of something in their religious tradition in which they would not want government interference. Each of them quickly thought of something. Among those would be sheltering refugees or encouraging conscientious objection to military service. They began to understand how their faith could be impeded by government regulation. Under the rationale behind the HHS mandate, the government could empower itself to judge the legitimacy of their beliefs, too!

This isn’t a Catholic issue. It’s a constitutional issue. It’s a religious freedom issue.

That’s why there are not just Catholic groups involved in “Zubik vs. Burwell.” Some 43 other groups, including the Southern Baptist Convention, East Texas Baptist University, Oklahoma Wesleyan University, Westminster Theological Seminary, various Orthodox Jewish organizations and others, have issued an amicus brief (“Friend of the Court” brief), which supports our action.

The Department of Health and Human Services — acting on its own authority — wants us to facilitate practices that violate our beliefs. This means that the government has assumed the right to judge which beliefs are important or unimportant. A Jewish group that submitted an amicus pointed out that many Orthodox Jews believe it is wrong to flip a light switch on the Sabbath. A government agency might demand that lights be turned on or off, saying that the belief wasn’t “important.” But to those who hold to that faith, it is a huge matter. That is why many religious groups are supporting our appeal.

The government should never be allowed to sit back and decide from its own peculiar perspective the legitimacy of religious beliefs — any religious belief. These beliefs are protected by the First Amendment of our cherished Constitution.

We need to stop the political rhetoric that surrounds this issue and get down to the bare bones. The law is clear. The constitutional history is clear. In order for the government to enact any law that would restrict the free exercise of religion, the state must have a deeply compelling interest that cannot be achieved in any other way.

No matter its intentions, the government is not free to enact laws that place an unreasonable burden on the free exercise of religion. The bar is even higher with government bureaucracies such as HHS, which have no right to legislate and no right to compromise basic constitutional rights. This mandate was not passed by Congress but was crafted by federal bureaucrats.

The main issue is not contraceptives. The main issue is the First Amendment right of freedom of religion that protects faith-based entities from being forced to cooperate with federal mandates that contradict sacred beliefs.

Please pray

on March 23

You don’t have to share the Catholic belief concerning artificial contraception to realize that threatening religious liberty, threatening freedom of conscience and the freedom of a faith-based agency to follow its own foundational teachings, is a threat to the freedom of all. It threatens the conscience of believers and non-believers alike, since the corollary of the freedom to believe is the freedom to not believe. A federal agency that sets itself up as judge over religious beliefs, and imposes sanctions based on those religious beliefs, is a threat to all our freedoms.

Another confession.

I am a late-night TV talk show junkie. At 11:35 p.m. Monday through Friday, when I can, I tune into “The Late Show with Stephen Colbert.”

While watching the show last week, I was shocked to see a 60-second commercial from the organization Freedom from Religion. The ad encouraged contributions to their organization so that — we might be FREE from religion.

The Supreme Court will decide whether we will be FREE for religion — free to follow our beliefs, or be fined hundreds of thousands of dollars for doing so. I trust that, despite efforts like those by Freedom from Religion, the Supreme Court will support religious freedom. It is hard to envision a constitutional rationale under which the court would give every government agency the right to restrict America’s freedom of religion.

Freedom of religious expression and the freedom to live out our religious beliefs in the public arena are not secondary rights. Our country was founded on these rights. They define who we are as “one nation, under God, indivisible, with liberty and justice for all!”

Pray that it may continue to be so!

Toward that end, I have asked each of our pastors to set aside a special time March 23 for you, our faithful, to come to church to pray for this very important intention. I have asked that this prayer time include exposition of the Blessed Sacrament.

Despite the busyness of Wednesday of Holy Week, I hope and pray that you, too, will hope and pray for a favorable outcome for Zubik vs. Burwell.

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