To Gag or Not to Gag? (Religion That Is)

A couple weeks ago, Hobby Lobby made it to the Supreme Court of the United States. The issue was Obamacare’s abortifacient/contraceptive/sterilization mandate. Hobby Lobby (a closely held corporation run by a believing evangelical Christian family) insists the mandate violates its religious beliefs and its free exercise of religion under the federal Religious Freedom Restoration Act. The Obama administration insists it doesn’t care.

While Hobby Lobby has received all the news lately, another case regarding the Obamacare mandate may prove to be even more interesting/disturbing. This one involves the Roman Catholic Diocese of Atlanta. What makes this case more interesting than the case involving a craft store, abortion, and Obama?

Why, 29 C.F.R. § 2590.715-2713A(b)(1)(iii), of course.

You see, C.F.R. (i.e., Code of Federal Regulations) § 2590 contains a gag-order, and a highly pernicious one at that.

Essentially, this gag-order states that Eligible Organizations — which specifically includes organizations “hold[ing] [themselves] our as a religious organization” — cannot directly or indirectly, seek to interfere with a third-party administrator’s arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third-party administrator’s decision to make any such arrangements. C.F.R. § 2590.715-2713A(a)(3), (b)(1)(iii).

You read that correctly.

The government is telling religious organizations that have a religious compunction against “contraceptive services” — i.e., abortion, sterilization, condoms, and the like — that they are prohibited from “directly or indirectly” “seek to interfere with a third-party administrator’s” decision to provide such services. (Third party administrators, among other things, process insurance claims.)

Directly or indirectly is a wide-ranging prohibition. It would include everything from directly speaking with the third-party administrator in an attempt to influence them. It was also prohibit religious organizations from speaking to someone who then speaks to the third-party administrator.

Heck, it would even prohibit a religious organization from sending the third-party administrator a letter expressing its opposition to abortion or other contraceptive services.

So, not only does the government force religious believers to provide services through insurance policies they find utterly abhorrent and contrary to their deeply held religious beliefs, it also prevents them from expressing their opposition to those who help administer their health insurance policies. And if believers have the audacity to break this government-imposed silence, they would be fined or jailed.

How unversed in the Constitution and First Amendment do you have to be to think this sort of gag-order on religious groups would stand? How pathetic do you have to be to force people to violate their religious beliefs and then tell them they have to shut up about it?

Thankfully, the federal court for the Northern District of Georgia would have none of the government’s nonsense.

Noting “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” Judge William Duffey, Jr. summarily determined the government’s gag-order unconstitutionally restricted religious organizations’ freedom of speech.

This sort of free speech infringement is a new low. The Obama administration is not known as a champion of religious freedom, but now, it has — amazingly — simultaneously restricted religious freedom and religious free speech, all so people won’t dare question the President’s signature legislative accomplishment.

How would the President feel if a Republican president prohibited religious organizations from directly or indirectly seeking to influence others regarding climate change or social justice? He would undoubtedly decry such a maneuver as a violation of the First Amendment. And he would be right. Unfortunately, consistency is not one of the hallmarks of politics. Using the federal bureaucracy to silence your critics — even if they are religious institutions — is, however.