Having now retired from the bench, I am able to put out political signs. I took advantage of the opportunity and set out signs in Bangor, Orono, Bucksport and Castine that read “Vote for religious freedom.” That message addresses the federal Health and Human Services mandate for religious employers to provide insurance coverage for contraceptives, despite their moral opposition. The required coverage includes drugs and devices that prevent implantation after conception, which is anathema in churches that are against abortion. The Roman Catholic Church also opposes artificial birth control.
Contrary to what Vice President Joe Biden said in the vice presidential debate, faith-based institutions have not been exempted from the HHS mandate. The U.S. Conference of Catholic Bishops responded to his remarks, “This is not a fact. The HHS mandate contains a narrow, four-part exemption for certain ‘religious employers.’ That exemption was made final in February and does not extend to ‘Catholic social services, Georgetown Hospital, Mercy Hospital, any hospital, or any other religious charity that offers its services to all, regardless of the faith of those served,’” according to an Oct. 12 USCCB statement.
The HHS definition of religious institutions that are exempted from the HHS mandate is extremely limited: (1) Exempt institutions must be intended to promote the faith’s religious values; (2) most employees must be of the faith; (3) the organization must primarily serve members of the faith; (4) it must qualify as a nonprofit for Internal Revenue Services’ purposes. The narrow exemption is opposed by many denominations. Wheaton College, a Christian, but not Catholic, institution is among the organizations challenging the mandate in federal courts. The Stand Up for Religious Freedom rally held Oct. 13, in Sanford, Maine, featured presentations by members of Baptist, Mormon and Charismatic Episcopalian congregations. The attorney for the U.S. Catholic bishops noted, in responding to the HHS Rule on May 12, “We are free to worship our God, but not to serve our neighbor….[U]nder this criterion, even Jesus would be deemed insufficiently ‘religious’ to qualify for the exemption because he fed and healed people of many different beliefs.”
The issue is not contraception. Nor is it the definition of abortion. The issue is “free exercise” of religion. The First Amendment to the U.S. Constitution states, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” The HHS mandate tries to avoid a constitutional violation by narrowing the definition of “exercise of religion” to the point that most religious charities, schools and social service agencies do not qualify. This is an extraordinary assault on religious liberty. Sadly, the divided Congress chose not to amend the Affordable Care Act to change the regulatory restriction.
I spent 32 years of my life happily bound by an oath to uphold the constitutions of the state of Maine and of the United States. The religious freedom issue is of primary importance to me as I face electoral choices. I do not expect it to be everyone’s primary issue, but it is one all citizens should consider when they vote. Application of the mandate to religious employers should be opposed even by those who are pro-abortion rights. Everyone is at risk when constitutional protections are diminished, as they are by this regulation. For our nation to survive as a free people, we must protect each other’s liberty as well as our own. “Eternal vigilance is the price of liberty.”
Jessie B. Gunther was a district court judge in Maine from 1990 to 2012 and a superior court justice from 1980 to 1986.