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Justice Kennedy Shows How Court Can Avoid Conflicts on Religious Freedom

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Unread 03.30.12, 02:46 PM
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Justice Kennedy Shows How Court Can Avoid Conflicts on Religious Freedom

On 03.30.12 06:45 AM posted by Thomas Messner

Obamacare is a train wreck for religious freedom, and the federal courts are likely going to be forced into cleaning up the mess.

However, at Wednesday morning’s hearing in the Obamacare case, Justice Anthony Kennedy pointed a way for the Court to avoid the raft of divisive conflicts that Obamacare will force federal judges to resolve.

The moment occurred when the government argued that the Court should show “judicial restraint” in not throwing out the entire law if it finds part of it unconstitutional. Justice Kennedy, who is a key vote on this matter, challenged the government’s argument on the ground that judicial restraint might be better served in this case by striking down the entire law if the individual mandate fails:
When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if…one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than…striking the whole [law].

The Court would respect the separation of powers by striking down the entire law if it concludes that the individual mandate is unconstitutional. This is because, as Justice Kennedy observed, such an approach would keep the Court from creating an essentially new law that Congress did not envision.

But striking down the entire law would also reduce conflicts between branches of government by eliminating the need for federal courts to resolve the potential tidal wave of religious freedom litigation threatened by Obamacare. Take for example the Obamacare rule that requires private employers – including many religious employers – to provide abortion-inducing drugs, sterilization services, and contraceptives in employee health plans. This rule has already resulted in seven federal court lawsuits, and that number could easily grow in coming months as religious groups, who are more likely to spend time serving the poor and educating students than studying the Federal Register, begin to fully comprehend how Obamacare tramples their religious freedom.

Further, this anti-conscience mandate is just the first in what is likely to be an all-too-long list of Obamacare rules and regulations that burden freedom of religious and moral conscience. On March 12, for example, the administration finalized a new Obamacare rule that, through a complicated interrelationship of law and circumstances, could result in many Americans being forced to pay for elective abortions with private funds.

As one source puts it, if government lawyers think they have their hands full defending against the growing number of challenges to the Administration’s first anti-conscience mandate, just wait until they get served by plaintiffs in the various lawsuits that “are set to explode exponentially once millions of Americans are forced to pay the elective abortion-premium mandate in 2014.”

Of course, the damage is not likely to stop here. That’s because health care issues are a minefield for personal freedom of conscience. Unfortunately, instead of respecting freedom of conscience in health care, the Obamacare law invests enormous decision making power in federal bureaucrats, who already have proved to be quite willing to exercise that power in ways that directly and unjustifiably violate religious freedom.

The Supreme Court would avoid this major social and legal conflict by striking down the entire Obamacare law if it rules that the individual mandate is unconstitutional. In addition to eliminating the need for federal judges to resolve the conflicts in Obamacare going forward, this approach would also provide a clean slate for Congress to enact authentic health-care reforms that respect freedom and fulfill the moral responsibility many Americans feel for the poor, sick, and needy.

Of course, Congress should not take a chance on having the Supreme Court save it from itself.* Congress should repeal Obamacare to eliminate the law’s disrespect for both religious freedom and freedom in general.

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