The HHS Contraception Mandate: ACLU-tested and approved

Let me draw your attention to this post from member Mothership_Greg over on the Member Feed.  Through some diligent research, MG has discovered that Kathleen Sebelius’s coercive contraception mandate is modeled on a section of the California Contraceptive Equity Law of 2000, which in turn was drafted by the ACLU. Yes, those stalwart defenders of the First Amendment created the very template for the State to deny free exercise of religion. The HHS Rule mandates that all employers cover contraceptives, including abortifacients, except for a very narrow category of “religious employers” defined as follows:

…a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.

And here’s the description of the California provision, taken from an article in the Texas Review of Law & Politics (TROLP):

The law defines “religious employer” as an entity for which each of the following is true:  (A) The inculcation of religious values is the purpose of the entity.  (B) The entity primarily employs persons who share the religious tenets of the entity.  (C) The entity serves primarily persons who share the religious tenets of the entity.  (D) The entity is a nonprofit  organization as described in Section 6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as amended.

As the TROLP article observes, this provision was drafted by the ACLU, using a framework that the organization had developed to promote “reproductive rights” to the maximum extent, with the narrowest possible accomodation for free exercise of religion.  Odd that, since reproductive rights aren’t actually in the Constitution while free exercise is. The ACLU designed this anti-religion clause in the aftermath of SCOTUS’s disastrous decision in Employment Division v. Smith, which gives a free pass to virtually any “neutral” law that just happens to burden free exercise. 

The California law was upheld by the California Supreme Court in Catholic Charities of Sacramento v. Superior Court of Sacramento.  The Court held that the religious exemption was “neutral” — even though it deals specifically with religious groups – because it provides an exemption to what would otherwise be a neutral law.  The logic utterly escapes me. SCOTUS declined to hear an appeal and so, alas, we have no higher authority on this question. 

MG ends his post with the following plea: ”So I implore my fellow Ricochet members, especially Catholics and lawyers (maybe even Catholic lawyers?), to review this article, and tell me if the decision in Catholic Charities of Sacramento v. Superior Court of Sacramento is absurd as it sounds to me.”

My answer is: yes, just as absurd, and then some.