When U.S. Secretary of Health and Human Services Kathleen Sebelius appeared before a House committee to testify on her department’s budget last week, Rep. Trey Gowdy, R-S.C., had the Obama administration member right where he wanted her: front and center for a grilling on constitutional law and religious liberty.
Gowdy asked her to defend a public statement she had made earlier this year about a controversial HHS requirement mandating employers – despite religious objections – provide insurance with contraception coverage to employees.
Sebelius had said her department sought “appropriate balance between respecting religious freedom and increasing access to important preventive services.”
But Gowdy insisted the government’s interest in regulating health care doesn’t exactly “balance” with the fundamental, constitutional right to religious liberty.
“We can talk about the politics all we want to. I want to talk about the law,” Gowdy 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.’”
Gowdy rattled off three different “balancing” tests for weighing matters of constitutional significance and asked Sebelius, “Which of those three constitutional balancing tests were you making reference to?”
Sebelius shuffled her papers, then responded, “Congressman, I am not a lawyer, and I don’t, um, pretend to understand the nuances of the constitutional balancing tests.”
Gowdy then fired off a string of Supreme Court decisions illustrating that there is no “balance” between the government’s interests in governing health care and the First Amendment’s guarantees of religious liberty.
“You would agree with me that our society has a compelling interest – not just an ‘important’ interest, a ‘compelling’ interest – in having an educated citizenry, right?” Gowdy asked.
“Yes, sir,” she responded.
“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.”
“I do not,” she replied.
Likely referring to the 1972 Wisconsin v. Yoder case, Gowdy informed her, “The religious group won.”
“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?”
Likely referring to the 1993 Church of Lukumi Babalu Aye v. City of Hialeah case, again he informed her, “The religious group won.”
“When a religious group objected to having a certain license tag on their cars, it went to the Supreme Court,” Gowdy continued, in a likely reference to the 1977 case of Wooley v. Maynard. “Do you know who won? … The religious group won.”
“I happen to think government has a compelling interest in avoiding gender discrimination,” he persisted yet again. “But this administration took to the Supreme Court a case, [Hosanna-Tabor Evangealical Lutheran Church and School v. EEOC], where a religious group wanted to decide who its teachers were, even if it meant gender discrimination. It was a 9-0 opinion in favor of religious liberty.
“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?”
His barrage of questions left Sebelius to admit, “I do not pretend to be a constitutional lawyer.”
The Catholic News Agency reports Gowdy’s home state of South Carolina is involved in two pending lawsuits bearing on the Obama administration’s Patient Protection and Affordable Care Act, commonly called Obamacare, and its accompanying contraception mandate. The first, as part of a 26-state lawsuit, was heard by the Supreme Court in March; the second lawsuit, brought by seven states and a number of Catholic ministries and individuals, specifically challenges the contraception mandate.