At President Barack Obama’s last State of the Union address, some of the focus has shifted to members of the audience who have been invited by the White House and House Speaker Paul Ryan (R-WI). The guests invited by the president and First Lady Michelle Obama include Refaai Hamo, a Syrian Muslim refugee, gay rights activist Jim Obergefell, and Mexican immigrant and U.S. Army veteran Oscar Vásquez.
For his part, Ryan has invited two members of an order of Catholic nuns who are currently embroiled in a court battle against strictures on healthcare put into place by Obamacare. The Little Sisters of the Poor is a group of religious who dedicate their lives to the elderly poor that has served the people of the United States for more than a century. The Little Sisters claim that the so-called contraception mandate contained in Obamacare makes it impossible to continue to provide services in the United States. In the last century, the Little Sisters were banned in communist China and Myanmar.
Ryan announced on January 11 that Sister Loraine Marie Maguire, who is the order’s mother provincial, and Sister Constance Veit, will sit in the Speaker’s box to hear Obama’s swan song. In a statement, Republican Ryan declared “The Little Sisters of the Poor care for the most vulnerable among us, and they should be free to practice their faith without the threat of government interference or intimidation.” He added, “The Sisters’ stand in defense of religious liberty – one of our most fundamental rights – is nothing short of courageous, and it’s my privilege to support their cause.”
Attorney Carrie Severino, who is the chief council and policy director of the Judicial Crisis Network, has filed an amicus brief in the Zubik v. Burwell case that involves the Little Sisters. According to Severino, her brief will criticize the Obama administration for “for adopting an irrelevant tax provision that exempts some entities from filing tax returns (26 U.S.C. § 6033) as the mechanism for determining which religious groups are exempt from the contraceptive mandate and which must beg the Department of Health and Human Services for an ‘accommodation.’”
Severino found that the exemption “puzzling.” She has found since then that internal government emails show how Obama administration officials were “obsessed with figuring out which Catholic institutions would fit within the section 6033-based exemption. As early as October 2011, the White House was trying to figure out how to structure the exemption so that Catholic universities would be forced to provide student contraceptives in student health plans.” According to Severino, emails of 2012 show how White House officials wanted to make certain that the Obamacare contraceptive mandate would treat the Catholic bishops differently from the academic institutions, charities and other entities they lead.
Severino argues that “section 6033 has exactly zero relevance to religious freedom interests. These documents are fatal to the Administration’s claim that structuring the contraceptive mandate this way was an effort to respect the religious groups’ religious objections. In fact, it was an arbitrary choice that failed to take into account the virtually identical religious freedom interests shared by groups granted and denied an exemption from the mandate.”
Attorney Ed Whelan, who leads the Ethics and Public Policy Center, wrote in the National Review that for the Obama administration to prevail against the Little Sisters and other nonprofit religious challengers, It will need to show that “the massive burden it is imposing on their religious beliefs furthers a compelling governmental interest and that it is the least restrictive means of furthering that compelling governmental interest.” Whelan wrote that the Obama administration cannot adequately defend the burden placed on Americans’ religious faith or that Obamacare’s accommodation is the “least restrictive means of furthering whatever governmental interest exists.”
To see relevant extant legal briefs, see here
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