Imagine if the government were to tell an organization dedicated to veganism that, because of a new mandate, they must purchase a meat platter to serve at their monthly meetings and that the chair cushions in their conference room must be made of leather.
Appalled by this governmental intrusion, the vegans ask to be excluded from the mandate since none of their members wish to eat bologna while sitting on dead cow skin. They also point out that a group of Jain vegetarians who meet next door were given an exemption and that they are merely asking to be treated similarly.
The government considers their request and decides to deny the exemption. The reason? Unlike the Jains, the vegans’ objection is based on moral philosophy rather than religion.
Such reasoning would be morally and legally absurd. Yet it is the exact reason the Obama administration gave for denying an exemption from the HHS’s abortifacient mandate to March for Life, a non-religious, non-profit pro-life organization whose staff opposes all forms of abortion, including those caused by contraceptives that can act as abortifacients.
Last year the Supreme Court ruled that employers providing a religious objection to the mandate (e.g., employers like the owners of Hobby Lobby) might qualify for an exemption. But March for Life is not a religious organization, even if most of their employee’s objections to abortion are rooted in religious beliefs. March for Life sued the government, claiming that the mandate violates the Fifth Amendment’s guarantee of equal protection because it treats the organization differently than it treats similarly situated employers.
On Monday, a federal judge agreed. Judge Richard J. Leon of the United States District Court for the District of Columbia rejected the government’s position that the March for Life is not “similarly situated” to the exempted organizations because it “is not religious and is not a church.”
You can almost hear the Judge Leon’s exasperation when he writes,
This not only oversimplifies the issue — it misses the point entirely! The threshold question is not whether the March for Life is similarly situated with regards to the precise attribute selected for accommodation. For the following reasons, I conclude that it most assuredly is.
Religious employers are exempt from the Mandate because of the “unique relationship between a house of worship and its employees in ministerial positions.” What, then, makes that particular employment relationship “unique” in this particular context? The answer, according to HHS, is simple: employees of religiously exempt organizations are “less likely” than other groups to want contraceptives because of their moral beliefs. In HHS’ s own words, “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.”
What emerges is a curious rationale indeed. HHS has chosen to protect a class of individuals that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has consequently moored this accommodation not in the language of conscientious objection, but in the vernacular of religious protection. This, of course, is puzzling. In HHS’ s own view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate. The characteristic that warrants protection-an employment relationship based in part on a shared objection to abortifacients-is altogether separate from theism. Stated differently, what HHS claims to be protecting is religious beliefs, when it actually is protecting a moral philosophy about the sanctity of human life. HHS may be correct that this objection is common among religiously-affiliated employers. Where HHS has erred, however, is in assuming that this trait is unique to such organizations. It is not.
Of course that trait isn’t unique to religious employers, as the existence of March for Life makes clear. Giving one group an exemption and denying it to another that is exactly similarly situated, Judge Leon notes, amounts to “regulatory favoritism.” Moral philosophy, he adds, should be accorded the same treatment as religious belief.
This reasoning is so clear, obvious, and reasonable that it raises the question of how the Obama administration never thought of it themselves. The fact is, they likely did consider this rationale—and still rejected it. That is why they are likely to appeal the decision to the United States Court of Appeals for the District of Columbia Circuit.
Still, for the time being, this is significant victory for both common sense and the rights of conscience. While the Obama administration continues to trample upon the moral beliefs of both the religious and the secular, at least one court still recognizes that, as ADF Senior Counsel Kevin Theriot says, “Americans should not be forced to choose between following their deepest convictions and submitting to unlawful and unnecessary government mandates.”