This week’s Supreme Court rulings on issues from same-sex marriage to racial quotas to the Voting Rights Act are dominating headlines.
But its decision last Thursday limiting the conditions the government can attach to federal grants may be a sleeper in terms of its impact. That’s because the court’s ruling comes at a moment when the president and his administration are finalizing the ObamaCare mandates for faith-based employers — notably the contraceptive mandate.
The case was called Agency for International Development v. Alliance for Open Society International. At issue was a provision in a 2003 federal law designed to combat the spread of HIV and AIDS abroad. The provision required anyone receiving these grants to have “a policy explicitly opposing prostitution.”
Writing for a six-justice majority, John Roberts struck down that requirement on the grounds that it violated the First Amendment freedoms of private groups seeking to partner with the government but not wishing to have its principles controlled by the government.
The chief justice put it this way: The government’s requirement “goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.”
In an amicus brief, The Becket Fund for Religious Liberty explained why this case is about much more than prostitution and AIDS: “The expansion of the modern regulatory state has increasingly led to financial involvement of the government with private organizations — including churches, religious universities, and religious charities — in ways that potentially give the government power over those organizations. Tax exemptions, which have been treated by this Court as tantamount to the provision of funds, are a prominent example . . .
“Under the government’s theory in this case, federal, state, and local governments may use these kinds of government funding programs as leverage to pressure organizations into affirmatively expressing particular government-prescribed views as the organizations’ own.”
That’s a timely message. From the time the Obama administration announced that it was requiring us to “pledge allegiance” to its mandated contraception benefit in all employer-provided health plans, religious employers throughout America have been feeling the squeeze of the federal government. Up to now, their objections to covering abortion-inducing drugs and sterilization surgery have fallen on the deaf ears of those in the Obama administration drafting the regulations.
Let’s hope the Supreme Court’s decision will bring the bureaucrats in the Obama administration to the bargaining table. Because it is clearly possible for the Obama administration to get most of what it wants while still hammering out a meaningful accommodation to Catholic, evangelical, Mormon and other faith-based organizations that object to the assault on their free-exercise rights.
Unfortunately, though the Aug. 1 deadline for ObamaCare’s implementation is just five weeks away, there has been no evidence that the White House cares about the religious-liberty concerns raised since the draft regulations were first announced and later reissued.
Already the Department of Health and Human Services faces a number of lawsuits, and many institutions like mine are ready to go to federal court to litigate if the final regulations continue to employ accounting gimmicks and sleight-of-hand maneuvers to force compliance with a policy we find unconscionable.
As the high court’s ruling in the case of federal grants ought to make clear, establishing a new entitlement to free birth control is one thing; forcing faith-based groups to enlist in the “armies of contraception” is another.
No one questions the government’s right to use its policies to oppose prostitution or promote contraception. What the Supreme Court told us Thursday is that the government can’t coerce allegiance to these policies from private organizations.
Let’s hope the Obama administration takes the message and will change course rather than force another showdown with the high court over its even more divisive contraceptive mandate.
Jim Towey, former head of the Office of Faith-Based and Community Initiatives under President George W. Bush, is president of Ave Maria University.