Government Watch / Politics

Federal Ruling Puts Protection of Religious Liberty in Question


This Wednesday is National Religious Freedom Day.  Fittingly, a religious freedom issue has served itself up for the occasion.  It is worth pausing to understand what is at stake – in another ruling that puts protection of religious liberty in question.

George Orwell, in his epic book “1984,” warned the world about those in power who rewrite history, seek to erase moral conviction, replacing freedom with entitlement and coercion, deliberately obscuring truth – with government mandates. 

Now, we come to a court ruling last week.  The ruling was handed down by a 9th Circuit federal district judge.  It imposes an injunction on (read: stops) Trump regulations freeing employers from paying for birth control if the employer objects on religious grounds. 

Many employers – especially with religious affiliations – do actually object.  Any employer can object – or could – on sincerely-held religious grounds, under Trump’s narrowly tailored waiver to the Affordable Care Act (Obamacare) mandate.

Suddenly, the Trump waiver does not matter in 13 states – with overwhelmingly Democrat leadership.  The States sued to force the Obamacare mandate on employers.  These states – as well as Nancy Pelosi’s reconstituted majority Democratic Caucus and the 9th Circuit federal judge – do not care what your religious convictions are, or those of an employer.  Employers now must pay.

Until further notice, God – or any individual’s sincerely held religious conviction – takes a back seat to an employee’s right in those 13 states to have birth control paid for.

One wonders what Orwell would say about this.  Here are some material facts.  Obamacare – a law no one read before then-and-again-Speaker Pelosi forced a US House to vote, with every Democrat saluting smartly, every Republican questioning and resisting – is now federal law. 

While the tax penalty was stripped last year by the Republican House, that law survives.  Interestingly, another judge recently knocked out Obamacare’s tax justification for constitutionality, so we will see what the newly constituted Supreme Court makes of that.  But for now, the law is the law.

To preserve religious liberty and shield those of faith from a federal mandate that insists they violate their faith, the Trump Administration dutifully waived the “must pay” provisions tied to birth control.  These 13 states then sued, and the 9th Circuit stomped down the Trump waiver – forcing employers to pay for protection from pregnancy by employees having sex who want free birth control.

If this seems ho-hum, remember that the future is won and lost incrementally, history made and unmade by inches.  Imagine, for a moment, that an Obamacare II shows up in our future – and it mandates employers pay for abortions, self-medication with illegal drugs like marijuana, heroin, synthetic opioids, or that churches report medical issues heard in confessions, maybe tape record confessions, or simply mandates employers pay for privileges an employer’s religion forbids.

You will say – as Harry Truman or John Kennedy might today of Obamacare’s employer-mandated birth control – that will never happen.  Maybe, or maybe not.  Things we thought would “never happen” happen every day.   The world we live in is changing at light speed and it would be good to recall bits of history, including the First Amendment.  We are all entitled to “free exercise” of religion.

Nevertheless, Judge Haywood S. Gilliam Jr. of the United States District Court in Oakland, California, has pronounced Obamacare inviolate, struck down Trump’s waiver protecting religious convictions, upheld the employer mandate to pay for whatever the federal government says employers must pay for – First Amendment provisions, convictions and protections notwithstanding.

It is a curious world.  Of course, that ruling too will go to the US Supreme Court, for certiorari, or not.  It may be reversed.  There will be other rulings like this one from the 9th Circuit, a lopsidedly-liberal bench on which I once clerked for a thoughtful Reagan-appointee.

For now, we live with this new ruling – and its import.  What it means has less to do with birth control than religious beliefs on which every American is constitutionally allowed to disagree – or was until this Obama/Schumer/Pelosi legislation and another quixotic ruling upholding it.  

The ruling is about what is paramount in our society – a federal mandate supported by one political party and universally opposed by the other, or every individual citizen’s freedom to live by sincerely-held religious convictions.

This is exactly the question Orwell posed when writing “1984,” a seminal warning about power of centralized government to crush an individual.  His warning was draconian, even if this ruling is just a dot on the line. The question, which should be on our lips after this ruling, is:  Where is that line going? 

Orwell may have the answer for us, even to this question, although I hope not.  One of his profound lines: “Now I will tell you the answer to my question.  It is this. The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power, pure power. What pure power means you will understand presently….”

In the end, individuals – and employers – must know they have rights.  These rights are not absolute, but they are constitutionally guaranteed.  One would hope that the US Supreme Court will come to the conclusion that religious convictions – of all kinds – enjoy “free exercise” and freedom from coercion in America.  That is my hope, even if this ruling exposes a different vision of America.


Robert B. Charles is the former Assistant Secretary of State under Colin Powell, a former naval intelligence officer, Reagan and Bush 41 White House staffer, and attorney. Charles is author of the recently released, widely endorsed book, Eagles and Evergreens (North Country Press, 2018), celebrating smalltown American values and the influence of WWII and Korean War veterans on a small town in Maine.

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