As millions of Americans refuse to accept the illegitimate ruling of the US Supreme Court redefining marriage, the issue of how to deal with conscientious objectors has risen to the fore.
Kim Davis, the Kentucky clerk jailed for refusing to violate her faith by participating in certifying a same-sex ‘marriage’ is perhaps the best known victim of the Court ruling, but she is only one of many who have been fined, fired, punished or put out of business. Similar punishments are taking place regarding religious groups who are unable to comply with Obamacare regulations because of their faith.
This article from The Federalist, written by our friends at the Becket Fund for Religious Liberty, may suggest one approach for policymakers to consider when it comes to accommodation. The best solution, of course, if for Congress and the states to pass the First Amendment Defense Act to prohibit government retaliation against supporters of marriage.
From The Federalist:
There are hard cases of religious conscience, and then there are easy ones. When the government has lots of ways to govern without trampling religious belief, it should be an easy case. We saw one last week when a federal appeals court ruled in favor of Dordt College and other religious nonprofit organizations trying to follow their faith. These groups can’t participate in a web of government regulations that would provide life-terminating drugs to their employees. So the ministries must choose to violate their faith or violate the law, to the tune of millions in Internal Revenue Service fines.
It’s the same choice faced by the Little Sisters of the Poor. If the Little Sisters don’t comply with this contraceptive mandate, they face millions in IRS fines. This is a group that provides vital care for thousands of elderly poor—exactly the sort of care that should be supported and encouraged by the nation’s health-care laws.
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The sad fact is that the government has a win-win solution at its fingertips. As a federal appeals court said in the Dordt College case last week, the government already operates exchanges where millions of Americans can obtain health coverage. Subsidies are available to those whose employers don’t provide health insurance.
This is how the government provides for those whose employers do not provide the generous health-care benefits many religious ministries already provide. The government could easily open those subsidies to any employees of religious groups who want the coverage not included in their employers’ plan. This would satisfy the government’s concerns, satisfy the ministries’ religious beliefs, and ensure that Americans still receive vital services from groups like the Little Sisters.
For that reason, the Eighth Circuit Court of appeals sided with religious ministries last week. Echoing a unanimous Supreme Court opinion on religious freedom, it said, “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.”
Although the solution is easy, it will probably take another Supreme Court intervention to make it happen. Last week’s court decision disagrees with rulings from several other appeals courts, creating the circuit split that Supreme Court-watchers have been predicting. When federal appeals courts disagree on an important issue like this one, Supreme Court review is very likely. That court returns from its summer recess next week, and it will have to decide whether to take up the case of the Little Sisters of the Poor, East Texas Baptist University, and other religious ministries.
The Supreme Court has been friendly to religious freedom, with recent rulings in favor of Hobby Lobby on a similar challenge, a unanimous victory for religious prison inmates in Holt v. Hobbs, and several emergency orders protecting religious ministries from fines under the HHS mandate. Let’s hope the Court continues this trend, recognizing that when religious freedom and government regulations conflict, it does not have to be a zero-sum game.