January 28, 2014 Updated: January 28, 2014 at 11:14 am
Among soldiers in the battle to preserve the Constitution, Colorado's peaceful and caregiving Little Sisters of the Poor are perhaps the most unlikely. In their statement of values, the sisters hold first among them "reverence for the sacredness of human life and for the uniqueness of each person, especially those who are poorest and/or weakest."
The Supreme Court last week enjoined enforcement of the Affordable Care Act's contraceptive mandate pending resolution of their case if they "inform the Secretary of Health and Human Services in writing" that they are a Catholic charity opposed to contraceptives. As if the Little Sisters haven't done so.
When the Little Sisters first objected to the contraceptive mandate, the Obama administration riposted with a dismissal of their religious beliefs, saying all they had to do was "sign a piece of paper" requesting a waiver from HHS, which would shift the obligation to the health insurance company. The Little Sisters said doing so would make them complicit, and that would violate their religious beliefs. So they declined. The Little Sisters aren't arguing to ban contraceptives and are not barring employees from using them as a condition of employment. They just refuse to participate in the funding and distribution of contraceptives, as is their right.
The Obamacare contraceptive mandate, along with the authority to grant waivers of the law, is not constitutionally sound. Put simply, the power to determine the legitimacy of a religious belief when it comes to enforcing the law does not lie with the president. Nor does it reside with Congress. If it resides anywhere other than the conscience of the individual, it resides with the judicial branch.
Only the courts can determine whether an individual's religious beliefs are validly held and whether the government has a compelling interest in creating the law; whether the statute is 'narrowly tailored' to meet the government's objectives; and whether there are less restrictive means of accomplishing the same thing. If government cannot prove that the law is constitutional under this strict scrutiny standard, and the burden is upon government to do so, then no waiver is needed for the mandate is, by well-worn precedent, "no law at all." If the law is constitutional, then no waiver is permissible under equal protection principles.
The Obama administration is fighting to create a bypass of the constitutional infirmity of the mandate by asserting powers that the president does not and must not have. He hopes to persuade the public that a cadre of unelected bureaucrats, not the courts, is the arbiter of the legitimacy of religious belief and practice.
If the executive branch is authorized to rule on religious waivers, it will advance the Wilsonian progressive agenda, where unelected politicos in Washington make and enforce the law at the direction of the president. Congress is relegated to advising the president rather than making law, and the Supreme Court exists to rubber-stamp whatever the president wants because he and his minions know what's best for the rest of us.
This is not what the founders contemplated and is not what the Constitution permits. The government must scrupulously avoid infringing on the fundamental rights of the people except with the gravest need. We need not beg government's permission when we refuse to buy another person's condoms.