A Catholic television network that reaches 200 million homes in 140 countries filed suit Thursday against the Obama administration.
EWTN become the third Catholic entity to sue over new health care rules that require all employers to cover sterilization and contraception, including controversial abortion-inducing drugs.
The other two lawsuits were filed on behalf of Belmont Abbey College in North Carolina and Colorado Christian University. All three are represented by the Becket Fund for Religious Liberty, which last month won a unanimous Supreme Court victory in which the Court found that that churches enjoy strong autonomy in governing their internal affairs.
Founded 30 years ago by a nun in her monastery’s garage, ETWN carries programs focused on teaching the Catholic faith to Catholics. But it is no longer directly affiliated with the Catholic Church, and it thus falls outside narrow exemptions allowed by the new regulations.
“The federal government cannot force people to violate their religion like this,” said Mark Rienzi, senior counsel at the Becket Fund and a constitutional law professor at the Catholic University of America, told the Deseret News. “Mother Angelica founded EWTN to spread the teachings of the Catholic Church — not to betray them.”
The network refuses to pay for contraceptive services and for abortion-inducing drugs. “If we are willing to compromise our Catholic faith, we are selling the soul of the network,” said Michael P. Warsaw, EWTN’s president and chief executive officer, in a press release.
“ETWN has been in existence for 30 years teaching faith around the world, not a social agency or a soup kitchen," Warsaw said. “We teach people what the church says. For us to be in an untenable position where the feds are telling us to teach what you want all day long, but in practice you can’t practice that is unacceptable.”
Catholics for Choice President Jon O’Brien disagreed, and predicted opposition will fizzle. “When contraceptive coverage for insurance was passed in New York,” he said, “Catholic charities sued for an expanded exemption and lost three times in the state courts, and the U.S. Supreme Court rejected their appeal in 2007.”
Not so fast, said Professor Steven Smith at the University of San Diego Law School. “A decision by the Supreme Court not to review a given case counts for little or nothing. The Court can decline to review for all sorts of reasons, and it often waits for a later case. It is not precedent.”
The 2007 New York case may have been declined simply because it was a matter of state law, and it would not be covered on the Religious Freedom Restoration Act of 1993 (RFRA).
RFRA was passed to restore religious protections that had been narrowed in a controversial 1990 Supreme Court decision, said UCLA law professor Eugene Volokh. The court subsequently struck down RFRA as applied to the states, but sustained it when applied to the federal government.
RFRA requires the federal government to meet three tests: the law must not target the believers faith, it must be serving a compelling state interest, and it must be narrowly tailored to serve its purpose in the least restrictive means.
Volokh cites the 1981 Thomas v. Review Board decision as a useful analogy. There a Jehovahs Witness refused to work in a factory that produced turrets for tanks, saying it would make him complicit in war. Defenders of the action said its not like we are requiring you to go out and kill anyone. The court emphatically sided with believer.
While Thomas was decided under the earlier constitutional law rules, Volokh says the RFRA principles today are very similar, namely that it is not up to us to decide what this guy sincerely believes. The only real question, Volokh says, is whether the government has landed on the least restrictive means of achieving some compelling state interest.
Under RFRA, Volokh suggests, Courts may actually be more ready to strike down a regulation challenged by a believer, since the Courts would now not be acting against Congress, but rather enforcing Congressional will against an unelected bureaucracy.
Jon OBrien saw these lawsuits as a ruckus that will soon pass. Following the New York decisions, he said, everyone went back to work, where they got insurance coverage for contraception, and the hysterical, unsubstantiated claims about trampling of religious liberty were quieted. Filing lawsuits may make for some short-term PR but wont change the long-term facts or reality.
Warsaw, not surprisingly, saw OBriens prediction as gut-wrenching: For us, our Catholicism is core to who and what we are. We cant just go on and pretend that nothing happened. It undermines our identity, our rights as individuals.
Warsaw also characterized this skirmish as just beginning. Its not about contraception or health care," he said. Its part of a broader agenda by this administration to marginalize people of faith and keep faith out of the public square."