What a remarkable glimpse of the gulf between the administration and Congress over religious freedom is flashing around the internet. It is a Youtube video of the secretary of health and human services, Kathleen Sebelius, at a hearing of the House Education and Workforce Committee hearing. She is being grilled by a Republican congressman of South Carolina, Trey Gowdy. He asks her about a statement she has made about seeking a balance between believer’s rights and the contraception mandate. What becomes clear is that there is no feel for, no thought about, but glancing attention to the Constitution the secretary is sworn to support.
An account of the hearing was issued by the Catholic News Agency. It’s almost painful to read. The secretary admits she was unaware of legal precedents confirming religious freedom, even as she sought a “balance” between believers’ rights and the contraception mandate. “I’m not a lawyer, and I don’t pretend to understand the nuances of the constitutional balancing tests,” Mrs. Sebelius told Mr. Gowdy. She also admits she is unaware of Supreme Court cases stretching back decades in which, as the Catholic News Agency put it, “religious believers’ rights against government intrusion were upheld by the court.”
One thing on which Mrs. Sebelius and Mr. Gowdy agreed was that government could not, in the congressman’s words, “decide which religious beliefs are acceptable and not acceptable.” The congressman then had this exchange with the secretary, as reported by CNA:
“So when a state said, ‘You have to send your children to school until a certain age,’ and a religious group objected because they did not want to send their children to school until that certain age, do you know who won?” he asked. “It went to the Supreme Court. ”
The 1970s case, Wisconsin v. Yoder, is considered a landmark in U.S. jurisprudence. Sebelius said she did not know its outcome. “The religious group won,” Gowdy informed her.
“I think the state has a compelling interest in banning animal sacrifice,” he continued. “When a state banned the practice of animal sacrifice and a religious group objected, it went to the Supreme Court. Do you know who won that?”
“I do not, sir,” Sebelius responded. She was again informed that the religious group prevailed, in the 1993 case of Church of Lukumi Babalu Aye v. Hialeah.
“When a religious group objected to having a certain license tag on their cars, it went to the Supreme Court,” Gowdy said, in an apparent reference to the 1976 case of Wooley v. Maynard. “Do you know who won?”
Sebelius said she was unaware of this outcome as well. “The religious group won,” Gowdy told her.
The congressman also noted the Equal Employment Opportunity Commission's recent 9-0 loss in the Supreme Court. The commission accused a Lutheran church and school of retaliatory firing, but lost the case when all nine justices upheld the school’s right to choose employees on religious grounds.
“So when you say you ‘balanced’ things,” Gowdy said, “can you see why I might be seeking a constitutional balancing, instead of any other kind?”
“I do,” Sebelius said, “and I defer to our lawyers to give me good advice on the Constitution. I do not pretend to be a constitutional lawyer.”
At this point the congressman asked the secretary whether there was a legal memo on which she had relied. Mrs. Sebelius, a one-time lobbyist for the Kansas Trial Lawyers Association and a former governor, responded that she “relied on discussions.” Hmmmm. What the exchange illuminates is the failure of the secretary of health and human services to “think constitutionally,” as these columns have put it from time to time in reference to others. We mention it because we are in the camp that craves constitutional thinking. We believe that the more eczemic our politics become the greater will be the balm of this law. It’s the one document all officers and legislators at both the state and federal level are bound by oath to support. It would seem to be worth more than the scant attention Secretary Sebelius has given it in the course of promulgating regulations that are certain to be controversial no matter which way her department rules.
This edition of has been corrected to reflect the fact that Ms. Sebelius is not a lawyer.