By Benjamin Mann
HHS secretary Kathleen Sebelius says she was unaware of legal precedents confirming religious freedom, even as she sought a “balance” between believers’ rights and the contraception mandate.
“I’m not a lawyer, and I don’t pretend to understand the nuances of the constitutional balancing tests,” Sebelius told Representative Trey Gowdy (R–SC) during an April 26 hearing.
In her responses to subsequent questions, the secretary admitted she was unaware of Supreme Court cases stretching back several decades, in which religious believers’ rights against government intrusion were upheld by the court.
Gowdy had asked Sebelius to explain the legal basis for what the secretary called an “appropriate balance between respecting religious freedom and increasing access to important preventive services.”
“There are only three ‘balancing’ tests that I am aware of, when it comes to matters of constitutional significance,” Gowdy told Sebelius. The HHS secretary was questioned about the contraception rule during a House Education and Workforce Committee hearing on her department’s 2013 budget.
Gowdy cited the “rational basis” test – which involves the legitimacy of a state’s interest in legislation – as well as the criteria of “intermediate scrutiny” and “strict scrutiny,” which judges apply in order to gauge a law’s relevance to fundamental state concerns.
When Sebelius responded that she did not understand the “nuances” of these tests, she was pressed by Gowdy to explain why she regarded the contraception mandate as constitutionally valid. The rule has been criticized for requiring religious groups to cooperate in providing sterilization and abortifacients.
“This mandate is going to wind up in the Supreme Court,” the South Carolina representative declared.
“We can talk about the politics all we want to. I want to talk about the law,” he told Sebelius. “I want to talk about balancing religious liberty with whatever else you think it’s appropriate to balance it with – because you used the word ‘balance.’”
“Which of those three tests is the appropriate test to use when considering religious liberty?”
“I am not going to wade into constitutional law,” Sebelius responded. “We are implementing the (health care reform) law that was passed by the Congress, signed by the president, which directed our department to develop a package of preventive health services for women.”
Sebelius said she agreed with the statement that government could not “force certain religious beliefs on its citizens.” When asked why this could not happen, she cited “the separation of church and state,” a phrase not found in the U.S. Constitution.
“It’s the Constitution,” Gowdy replied, citing the First Amendment which guarantees the “free exercise of religion.”
Sebelius also agreed with Gowdy’s statement that government could not “decide which religious beliefs are acceptable and not acceptable.” This, she acknowledged, is “part of our Constitution.”
“So, before this rule was promulgated,” Gowdy continued, referring to the federal contraception mandate, “did you read any of the Supreme Court cases on religious liberty?”
“I did not,” Sebelius responded.
The representative proceeded to ask the Health and Human Services secretary whether she was familiar with the outcomes of several cases pitting state interests against religious believers’ claims under the First Amendment.
Sebelius agreed with Gowdy that the state had a “compelling interest in having an educated citizenry.”
“So when a state said, ‘You have to send your children to school until a certain age,’ and a religious group objected because they did not want to send their children to school until that certain age, do you know who won?” he asked. “It went to the Supreme Court.”
The 1970s case, Wisconsin v. Yoder, is considered a landmark in U.S. jurisprudence. Sebelius said she did not know its outcome. “The religious group won,” Gowdy informed her.
“I think the state has a compelling interest in banning animal sacrifice,” he continued. “When a state banned the practice of animal sacrifice and a religious group objected, it went to the Supreme Court. Do you know who won that?”
“I do not, sir,” Sebelius responded. She was again informed that the religious group prevailed, in the 1993 case of Church of Lukumi Babalu Aye v. Hialeah.
“When a religious group objected to having a certain license tag on their cars, it went to the Supreme Court,” Gowdy said, in an apparent reference to the 1976 case of Wooley v. Maynard. “Do you know who won?”
Sebelius said she was unaware of this outcome as well. “The religious group won,” Gowdy told her.
The congressman also noted the Equal Employment Opportunity Commission’s recent 9-0 loss in the Supreme Court. The commission accused a Lutheran church and school of retaliatory firing, but lost the case when all nine justices upheld the school’s right to choose employees on religious grounds.
“So when you say you ‘balanced’ things,” Gowdy said, “can you see why I might be seeking a constitutional balancing, instead of any other kind?”
“I do,” Sebelius said, “and I defer to our lawyers to give me good advice on the Constitution. I do not pretend to be a constitutional lawyer.”
“Is there a legal memo that you relied on?” Gowdy asked. “At least when Attorney General Holder made his recess appointments, there was a legal memo that he relied on. Is there one that you can share with us?”
“Attorney General Holder clearly runs the Justice Department and lives in a world of legal memos,” Sebelius responded, saying she “relied on discussions.”
South Carolina is involved in two pending lawsuits bearing on the Obama administration’s health care reform law and the accompanying contraception mandate.
The first, against the Affordable Care Act as a whole, was heard by the Supreme Court in March. Its outcome is likely to determine the progress of a second lawsuit, brought by seven states and a number of Catholic ministries and individuals, specifically challenging the contraception mandate.