By Dave Andrusko
Thanks to NRLC’s Federal Legislative Department, I am able to share with you an illuminating exchange that took place this morning. In a little over five minutes the dialogue between Rep. Trey Gowdy (R-S.C.) and HHS Secretary Kathleen Sebelius told us a great deal about how cavalierly the Obama Administration treats religious liberties. (See www.youtube.com/watch?v=NnO7qa7fMRc&feature=plcp.)
Sebelius was testifying before the House Education and Workforce Committee on President Obama’s Fiscal Year 2013 budget proposal. This afforded committee members a chance to inquire about a litany of issues, including ObamaCare, and the HHS mandate requiring religious institutions and individuals of conscience to pay for health insurance plans that cover medical procedures and drugs contrary to their religious beliefs and consciences.
The video picks up with Gowdy quoting from Sebelius’s testimony where she says that the mandate “strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.” From there Gowdy walks her through the reasoning (or lack thereof) for the mandate and what they were “balancing” religious liberty against.
He says there are “only three balancing tests that I am aware of when it come to matters of constitutional significance.” After laying them out Gowdy explains that “Strict scrutiny” is to be employed when fundamental rights are involved and, he added helpfully, “I am sure you can see that religious liberty is a fundamental right.”
Gowdy then asks Sebelius “which of these three constitutional balancing tests were you making reference to when you said you balanced things?” Sebelius’s primary response here, as elsewhere, was, “this is above my pay grade.”
Gowdy clarified that his inquiries were not about “politics” but the law, because this mandate is going to wind up in the Supreme Court. He then asked her a series of uncomfortable (for her) questions.
“Which of these three tests is the appropriate test to use when considering religious liberty?” Just doing my job
“Do you agree with me that government cannot force certain religious beliefs on its citizens?” “Yes, sir. “ Why? “The separation of church and state,” Sebelius replies, when the proper answer is, of course, the Constitution—in this case the First Amendment.
“Can the government decide which religious beliefs are acceptable and not acceptable.” Her response, “No, sir.”
Gowdy asks her about a series of cases in which the Supreme Court gave a wide berth to religious liberties. Sebelius didn’t know what the cases were, or their outcomes (the religious group won them all) before he told her.
He asks “if before this rule was promulgated did you read any of the Supreme Court cases on religious liberty?” “I did not.” She said she relied on her lawyers
“Was there a legal memo you relied on?” Nope. Sebelius said she relied on “discussions.”
Unfortunately, at that point Gowdy’s time to ask questions ended. But what he had done brilliantly was to outline many of the principal criticisms of the HHS mandate to which Sebelius could do little more than filibuster until Gowdy’s time ran out.
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