On Friday, the Department of Health and Human Services issued two interim rules rolling back the HHS mandate, which requires employers to furnish female employees with contraception, sterilization, and potentially abortifacient drugs for “free.”
The two rules, which take effect immediately, do not repeal the HHS mandate. One rule grants an exemption to nonprofits, closely held businesses, and some publicly traded corporations that have sincerely held religious objections to its terms. The other allows all but publicly traded corporations to refuse to comply due to moral, but not religiously based, objections.
“The new rule is a huge win for business and ministry leaders who, since 2013, have been fighting the government’s disregard for their religious beliefs and moral convictions,” said Jeremy Dys, deputy general counsel for First Liberty. “Now, they can lead their organizations in good conscience without choosing between their convictions and obeying law.”
Those who refused to comply with the old rule faced a $100-a-day fine for each uncovered employee. The policy resulted in our government “threatening hardworking, patriotic Americans with crushing fines for simply seeking to live their lives according to their faith,” said Family Research Council President Tony Perkins on Friday.
By punishing businesses on the basis of their adherence to their religious teaching, the government in effect punishes that religion. The Ottoman Empire charged non-Muslims a tax not paid by others. Beginning in 1943, the USSR taxed priests at a rate of up to 81 percent of their income. Until today, the U.S. government provided economic disincentives to remaining faithful to any religion with well-defined teachings on contraception and/or abortion.
Yet paradoxically, it is often the underlying faith which motivated the individual to serve others in the first place. Would monks and nuns have cared for the dying without a religious motive? One of the litigants against the HHS mandate understood this. “The beliefs that inspire Christian colleges and universities and the Little Sisters of the Poor to serve their communities should be protected,” said Gregory Baylor, a senior counsel for the Alliance Defending Freedom (ADF).
Nor does the religious motive apply only to nonprofit work. Many entrepreneurs and business people see serving others in the marketplace as an extension of their faith. “It is by God’s grace and provision that Hobby Lobby has endured,” said the company’s founder and CEO, David Green. “Therefore, we seek to honor God by operating the company in a manner consistent with Biblical principles.”
Punishing this outlook, as the HHS mandate did, is antithetical to the American founding, which reflected a Lockean belief in the inviolability of “life, liberty, and property.” And as James Madison, the father of the U.S. Constitution, said, “Conscience is the most sacred of all property.”
The good news is this is one of two recent developments across the transatlantic sphere that upheld the integrity of religious faith as applied to the world of work.
Good news from Hungary
On September 14 – the traditional feast of Holy Cross – the European Court of Human Rights ruled that secular courts should not rule on whether clergy have been unfairly fired.
Károly Nagy, a pastor in the Reformed Church of Hungary (Magyar Református Egyház), lost his position after making public statements the denomination deemed objectionable. After exhausting the ecclesiastical court appeals process in 2006, he sued the denomination in labor and civil court.
The labor court trial ended in April 2007 on the grounds that Nagy’s case involved church, not labor, law. His civil case was dismissed in May 2009.
He turned to the ECHR in 2009, after the Hungarian Supreme Court refused to hear his case.
ADF International told the ECHR that church independence is respected by Article 18 of the Universal Declaration of Human Rights, Article 18 of the International Covenant on Civil and Political Rights, and Article 10 of the Charter of Fundamental Rights of the European Union.
On September 14, the ECHR’s Grand Chamber ruled that the former pastor’s case was “governed by ecclesiastical law, and [the church’s] decision to discontinue [his service] cannot be deemed arbitrary or manifestly unreasonable” by a secular court. The ruling is binding on all 47 member states subject to its authority, from Iceland to Azerbaijan.
This decision was implicit in a 2000 ECHR ruling holding that religious “believers’ right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully," because “the autonomous existence of religious communities is indispensable for pluralism in a democratic society.”
Ecclesiastical independence, while necessary, is a rare blessing. Upholding church integrity led holy people – perhaps most prominently Thomas Beckett and John Fisher – to the executioners’ block. As U.S. courts have ruled, it is impossible for secular courts to decide whether a church improperly fired a priest or pastor without deciding whether the church is properly following its own dogmas. In effect, that hands the right to determine church doctrine in the hands of black-robed judges instead of white-robed clerics.
The ruling in Nagy v. Hungary is a welcome development – and not one unfamiliar in the United States. In 2012, the U.S. Supreme Court ruled on an employment lawsuit against by a Detroit-area Lutheran school for dismissing Cheryl Perich, a teacher and “commissioned minister,” for breaking a church doctrine. Its Hosanna v. Tabor ruling affirmed that the “ministerial exception” allowing churches to decide who can or cannot serve as clergy is rooted in the First Amendment – that serving as a minister is not a civil right. (In that instance the Obama administration, through the EEOC, sided unsuccessfully against the church.)
The fact that religion, liberty, and vocation are inseparable has always lay at the heart of the American experiment. Samuel Adams said in 1776, “Driven from every other corner of the earth, freedom of thought and the right of private judgment in matters of conscience direct” new citizens on a “course to this happy country as their last asylum.”
Today’s scaling back of the HHS mandate indicates that the United States has not abandoned its role as the world’s preeminent champion of religious liberty.
Both show that employment is an active component of religious practice and, thus, something in which no government should intervene.
(Photo credit: The Becket Fund for Religious Liberty. This photo has been cropped.)