No attempt to defend the constitutionality of the mandate
On Thursday, the Obama administration filed its first legal response to Belmont Abbey College’s lawsuit challenging the controversial contraception mandate. This was its first opportunity to explain to the court and the country why the mandate is not illegal and unconstitutional.
So what did the administration say? Not that the mandate is legal; not that the mandate is constitutional. Instead, it asked the court to duck the key issues because the administration has “indicated that they will propose and finalize changes to the regulations” at some unspecified date in the future.
“Apparently, the administration has decided that the mandate, as written and finalized, is constitutionally indefensible,” said Hannah Smith, senior counsel at The Becket Fund for Religious Liberty, which represents Belmont Abbey College. “Its only hope is to ask the court to look the other way based on an empty promise to possibly change the rules in the future.”
The administration’s legal filing relies on an announcement by President Obama at a February 10 press conference, in which he stated that the rules may be changed in the future. But that announcement is not legally binding and does nothing to change the law on the books, which is already harming religious organizations like Belmont Abbey College.
“Promises, promises. The Administration is taking the remarkable position that announcing future plans at a press conference means the courts should ignore what the law on the books actually says,” added Smith. “Since when does ‘Trust me, I’m from the government’ suspend the laws of the land?”
President Obama’s February 10 “accommodation” is coming under increasing fire on numerous fronts. A diverse coalition of over 300 scholars and religious leaders have called the maneuver “unacceptable,” because it still forces many religious organizations to violate their core religious beliefs. The U.S. Conference of Catholic Bishops has also denounced it. And in today’s Washington Post, Charles Krauthammer points out that the supposed “solution”—forcing insurance companies to provide contraception for free—is an unprecedented “assault on free enterprise,” because it would allow the government, without any statutory authority, to force private companies to hand out goods and services for free.
“Religious organizations are rightly skeptical that the government will fix the flagrant violation of religious liberty by commandeering the insurance industry,” said Smith. “If this is the best the administration can do to defend its mandate, it won’t last long.”
The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. The Becket Fund has a 17-year history of defending religious liberty for people of all faiths. Its attorneys are recognized as experts in the field of church-state law, and they recently won a 9-0 victory against the federal government at the U.S. Supreme Court in Hosanna-Tabor v. EEOC.
