Tag archives: Conscience protection

Federal Court Ruling in Texas Is a Big Win for Religious Liberty

by Katherine Beck Johnson

October 16, 2019

An Obama-era regulation went to court recently at a U.S. federal courthouse in Texas. In Franciscan Alliance v. Azar, Judge Reed O’Connor issued an opinion striking down a Health and Human Services (HHS) mandate requiring doctors to perform gender transition procedures. Judge O’Connor held that the Rule violated the Religious Freedom Restoration Act (RFRA).

In May 2016, the federal government, through HHS, issued a mandate that would require a doctor to perform gender transition procedures on any patient, including a child. The Rule required doctors to provide these procedures even if the doctor believed it could harm the patient. In addition, the mandate required virtually all private insurance companies and many employers to cover gender reassignment therapy. If the insurance companies or employers refused, they would face severe penalties and legal action. While HHS exempted Medicare and Medicaid, they expressly prohibited religious exemptions. The Plaintiffs asked the District Court to vacate the Rule and convert its previously entered preliminary injunction to a permanent injunction.

Judge O’Connor held that the Rule violates RFRA. The Rule substantially burdened Plaintiffs’ sincere religious beliefs without a compelling interest. In addition, the Rule expressly prohibits religious exemptions.

The Plaintiffs’ refusal to perform, refer for, or cover transitions or abortions is a sincere religious exercise. In order to follow this sincere religious belief, the mandate requires extensive expenses. The Rule places significant pressure to perform and cover transition and abortion procedures, it forces Plaintiffs to provide the federal government an extremely persuasive justification for their refusal to perform or cover such procedures, and it requires them to remove the categorical exclusion of transitions and abortions. Judge O’Connor found that the Rule makes the practice of religion more expensive in the business context.  

Judge O’Connor ruled that the Defendants did not provide a compelling interest that would justify the burden on religious exercise. Those advocating in favor of the mandate argued that a compelling interest was specified in the preamble to the Rule, which states, “the government has a compelling interest in ensuring that individuals have nondiscriminatory access to health care and health coverage.” Judge O’Connor found that although that could arguably satisfy a categorical application of strict scrutiny, it cannot satisfy RFRA’s “more focused” inquiry. He said that even if those in favor of the mandate had provided a compelling interest, they failed to prove the Rule employs the least restrictive means.

The Rule was vacated (as opposed to a less severe permanent injunction) because it was found to be arbitrary and capricious. The Rule was found to be “contrary to law” under the APA due to its conflict with Title IX, its incorporated statute.

Judge O’Connor’s ruling is a huge win for religious liberty. HHS under President Trump is also working to take strides that further protect religious liberty. In May 2019, HHS proposed bringing its regulations into compliance with those decisions and ensuring that the government did not interfere and require a person to go against their convictions to provide gender transition procedures. The win in Texas coupled with the new rules from HHS provide optimism for the future of religious liberty.

Eighth Circuit: Minnesota Can’t Force Small Business to Make Same-Sex Wedding Videos

by Peter Sprigg

September 5, 2019

National media gave scant attention to an important court decision on August 23. The ruling in Telescope Media Group v. Lucero, by a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, was another landmark in the ongoing debate about whether governments can force small businesses in the wedding industry to participate in same-sex weddings, over the conscientious objection of their owners.

Last year, the U.S. Supreme Court ruled in favor of Jack Phillips of Masterpiece Cakeshop, a baker who had declined to create a custom wedding cake for a same-sex couple. However, the court ruled that Phillips had been a victim of specific anti-religious discrimination by the Colorado tribunal that sought to punish him, so they did not definitively address the fundamental free speech concerns that his attorneys had raised.

Telescope Media Group (TMG) is a business founded by Carl and Angel Larsen, videographers who wished to create a business that would make wedding videos, and in the process promote natural marriages between one man and one woman. They sued Minnesota public officials to prevent them from using the Minnesota Human Rights Act to force the couple to make videos of same-sex weddings as well.

In a 2-1 decision, the 8th Circuit panel ruled in the Larsens’ favor, saying that “the First Amendment allows the Larsens to choose when to speak and what to say.” Perhaps that’s why it was largely ignored by the national media.

The breakdown of the vote also shows how important judicial appointments are. The opinion was written by David Stras, a 45-year-old Trump appointee, on the bench since January 2018. He was formerly on the Minnesota Supreme Court (having been appointed by former Republican Governor Tim Pawlenty). The other judge in the majority was 67-year-old Bobby Shepherd, appointed by George W. Bush and on the bench since 2006. Meanwhile, there was a dissent by Judge Jane L. Kelly, a 54-year-old Obama appointee who has been on the bench since 2013.

This was on appeal of the District Court’s decision to deny a preliminary injunction, so it is not a final decision on the merits. However, it is an encouraging decision in that it is based squarely on the free speech claims (or in this case, the right to be free from government-compelled speech) made by the plaintiffs. The court also accepted a “hybrid rights” claim incorporating the free exercise of religion.

Since precedent has established that videos represent a form of speech, whether the principles articulated would apply with equal force to bakers or florists may still have to be argued in other cases. However, the fact that this case was decided (at least for now) on free speech grounds, rather than the anti-religious discrimination grounds used in Masterpiece, makes it a stronger precedent for those concerned about protecting free speech and religious liberty.

Private Employers Nationwide Face New Quandary of Conscience

by Leanna Baumer

September 26, 2013

This summer, the Supreme Court in United States v. Windsor struck down the federal definition of marriage that limited federal benefits to those couples in natural marriages of one man and one woman. In the wake of that ruling, a surge of federal agency announcements have expanded access for same-sex couples to federal benefits from many agencies such as the Internal Revenue Service, Medicare, the Department of Defense, and the Veterans Administration. Though Justice Kennedy issued an opinion in Windsor with clear federalism themes, reiterating the need to “[defer] to state-law policy decisions with respect to domestic relations,” the federal government has instead imposed a new de facto federal definition of marriage that doesn’t respect the diversity of state laws on this topic. In other words, federal marriage benefits will be given to couples who are not legally married under the state law of a super majority of the states.

The latest agency to ignore the majority of states’ laws on this topic is the Department of Labor. Last week, DOL issued guidance informing all private employers across the nation that they must now extend spousal health and retirement benefits organized under the Employment Income Retirement Security Act of 1974 (ERISA) to same-sex spouses—even if they live in a state that does not recognize same-sex “marriage.”

Unlike previous agency guidance, Labor’s announcement means that many private business owners and companies must now adhere to the Obama Administration’s new federal definition of marriage in determining their benefit policies, despite possible religious or moral objections to extending marriage benefits to same-sex partners. And, since the majority of private pension plans and all self-funded employee health benefits plans are organized under ERISA, the impact of this law is dramatic (reaching over 700,000 private retirement plans and 2.3 million health plans).  

If you’re a shop owner who is willing to hire any individual, no matter their sexual orientation, but who believes in natural marriage and only wishes to extend spousal benefits to those traditionally married couples, how will you comply with federal law?  Some legal commentators have suggested that a private employer could have standing to sue over this agency guidance, though the outcome of such a challenge would be uncertain. 

In addition to the burden this places on private employers, the Labor guidance continues to trample on the will of the American people in most states who have maintained laws respecting only natural marriages. By requiring companies in states that don’t recognize same-sex “marriages” to extend benefits to same sex partners, the federal government has enacted the very “contradictory marriage regimes within the same State” that the Windsor Court condemned in its June 2013 ruling. 

The Casualties of the Healthcare Law

by Family Research Council

August 30, 2012

As we close out this historic month of August, 2012, I cant help but comment on a very sad day that marked the start of a new moment in American history. The infamous contraceptive mandate began its implementation stage on August 1, 2012, and on this day the landscape of the separation of Church and State as we have known it in the United States was drastically altered. On that day groups were forced to violate religious dictates and consciences on such matters as insurance coverage of contraceptives and abortion-inducing drugs.

Those who have been following this debate will well remember that one year ago, the department of Health and Human Services used its regulatory power to mandate that the full range of Food and Drug Administration approved contraceptives be included in all health insurance plans, minus a very small group of religious employers, namely places of worship.

A massive public outcry ensued this decision, resulting in the Obama Administration announcing a purported accommodation last February (one that is yet to be worked through in any level of detail) as well as a one year safe haven for certain religious employers while they worked through the logistics of violating their consciences.

Organizations that do not fulfill the safe haven criteria include businesses, and groups that must not have provided any kind of contraception coverage before the February 10th regulation was issued. A number of lawsuits have been filed in response, including many asking for immediate injunctions against the mandate set to begin on Wednesday.

So who are the first casualties of the healthcare law? One such group is Weingartz Supply based out of Ann Arbor,Michigan. The organization provides supplies for lawn-mowing and snow removal. Until now the business, owned by a Catholic has not included contraception coverage, but now will be required to do so. Representing Weingartz and a Catholic business organization, Legatus, the Thomas More Law Center in Michigan filed a suit asking for an injunction from the mandate, but a hearing has not yet been set despite a May filing.

Similarly, a family-owned heating and cooling business in Colorado, Hercules, sought and received a temporary injunction the Friday before the mandate was to be implemented. But the injunction is specific to their family business, other groups are not covered.

Other casualties of the healthcare law include insurers and participants in the individual market who must to comply with the HHS Mandate as well as schools that have already removed health insurance coverage because of the HHS Mandate. To date this includes Franciscan University of Steubenville, Ohio as well as Ave Maria University in Florida. Note the irony, given that the goal of the healthcare law was to have more people covered, not less.

By far the vast majority of religious groups impacted by this mandate will feel the pinch once the safe harbor period (and the election) is over.

As we reflect upon this defining moment in history where HHS has in essence used regulatory power to redefine Church and State relations, I can still find comfort in the balance of power existing in our U.S. democratic system. The constitutionality of this regulation will ultimately be decided by the courts, where approximately 50 suits related to the HHS mandate currently wait to be heard.

More Evangelical Colleges Rise to Oppose Obama Anti-Conscience Mandate

by Rob Schwarzwalder

August 24, 2012

Our alma mater, Biola University, has now joined the growing number of Evangelical and Catholic colleges and universities suing the federal government over the Obama health care law’s requirement that all health care providers provide medical insurance plans that include access to abortion and abortion-causing drugs.

Biola President Barry Corey explained why our school is fighting the Obama anti-conscience mandate in these eloquent words:

It is simply a natural outgrowth of our calling to be stewards of the mission Biolas founders have trusted to us, to hold fast to biblical convictions even in the midst of shifting cultural sands. It is unjust that the federal government has mandated that institutions of faith like Biola, which has held biblically centered convictions for over a century, violate their consciences in this manner. It is an infringement on our freedom to be the university God has called us to be.”

Biola’s suit, undertaken jointly with Indiana’s Grace College and Seminary, is being filed by Alliance Defending Freedom (ADF). As East Coast Biolans, we are proud of and grateful for the stand of our school. To learn more about the Obama anti-conscience mandate and what FRC is doing to oppose it, click here.

We represent two different generations of Biolans (Rob, ‘79 and Julia,‘09), but Biola represents something timeless: The eternal truth of the Word of God. For standing up for that truth, we’re thankful for President Corey’s leadership and the continued strong stance of our school.

State Orthodoxy and the Conscience

by Rob Schwarzwalder

August 22, 2012

Law professor John Inazu writes in USA Today that when it comes to the Obama contraception mandate, “The legal challenges implicate an interest that all of us Catholics and evangelicals, religious and non-religious should value and safeguard: the right of private groups to dissent from the prevailing state orthodoxy.”

His wonderfully descriptive phrase - “prevailing state orthodoxy” - is saddening. In a republic where personal virtue is the foundation of our political order, and which rests, in Michael Novak’s wonderful phrase, “on two wings” - biblical revelation and natural law, law that is self-evident and accessible to everyone - the idea of there being a “state orthodoxy” is jarring. Yet such orthodoxy exists, which is why the Obama Administration is insisting that Evangelicals and Catholics cast away their consciences (we won’t, by the way).

When the federal government steps in to mandate that persons with reasonable, historic, and deeply held moral convictions must violate them in order to comply with a state dictate, Christians must echo the words of Peter in Acts 5:29: “We must obey God rather than men.”

Prof. Inazu concludes, “the right to differ protects moral choices that lack government approval.” Amen. But, as he would agree, that right is not just one that exists within the mind. For it to be a fully realized right, it must be allowed to affect the choices we make in civic and political life. In other words, adherence to a belief while complying with a legal limitation on the capacity to act on it is the moral equivalent of junk food: It brings us temporary respite from hunger, but no enduring benefit.

It is not enough that, in its great wisdom and compassion, the federal state does not interfere with the function of our minds as long as this function remains limited to the space between our ears. True conviction - what one believes is of value in time and eternity - means concrete and visible action in the public square. It’s government’s job to protect this right, not diminish or squelch it. As Prof. Inazu notes, “Evangelicals and Catholics need not shudder at the prospect of being politically marginalized. After all, Jesus did not. But political marginalization does not require political passivity. And one means of resistance is asking courts to protect the ability of private groups to dissent from state orthodoxy.”

So, we will ask, fight, and stand. But, by God’s grace, we will not give in.

Should Catholics Have a Conscience?

by Krystle Gabele

November 22, 2011

Recently, Hot Air reported that House Minority Leader Nancy Pelosi doesnt understand why the U.S. Catholic bishops are against requiring insurance companies to cover contraceptives, including known abortifacients. She belittles Catholics who object, conscientiously, to paying for or performing services that their church teaches are wrong.

Perhaps she should consider the Catholic Catechism, which says that Moral conscience, present at the heart of the person, enjoins him at the appropriate moment to do good and to avoid evil. What could be more good than defending life? And what could be more evil than to disregard it, or denigrate those who seek to uphold it.

Even though the former Speaker is Catholic, she seems to have long forgotten that Catholicism is unequivocal in support of the sanctity of human life, from conception onward. This teaching is discussed throughout the Catechism, and there is even a section regarding the usage of abortifacients, and the Catholic Churchs stance against the use.

The Churchs teaching on this issue has a direct bearing on public policy. It is convenient to say, Im personally against abortion, but dont want to use my personal convictions to make laws. This is sad and silly: Our moral convictions inform our every decision, public or private; if one avers that personhood begins at conception, and believes this deeply, it should affect the way one legislates.

But as my colleagues Cathy Ruse and Rob Schwarzwalder have argued in their recent booklet, The Best Pro-Life Arguments for Secular Audiences, medical science and irreducible logic demonstrate that the embryo is a person and, if a person, deserving of legal protection.

As a Catholic, I am disheartened that Mrs. Pelosi would advocate against the sanctity of human life. God created life, and it is our role to protect the born and unborn. In fact, Mrs. Pelosi should be reminded of a passage in Jeremiah: Before I formed you in the womb I knew you, and before you were born I consecrated you; I appointed you a prophet to the nations.

As this passage indicates, God is the Author of life. If that is true, then one of governments most fundamental duties is to protect that which He has declared sacred. It is my hope that Mrs. Pelosi will come to recognize this truth.

Daily Buzz

by Krystle Gabele

May 22, 2009

Here’s what we are looking at today.

Daily Buzz

by Krystle Gabele

May 13, 2009

Here’s what we are reading today.

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