Gowdy cited the “rational basis” test – which involves the legitimacy of a state's interest in legislation – as well as the criteria of “intermediate scrutiny” and “strict scrutiny,” which judges apply in order to gauge a law's relevance to fundamental state concerns.
When Sebelius responded that she did not understand the “nuances” of these tests, she was pressed by Gowdy to explain why she regarded the contraception mandate as constitutionally valid. The rule has been criticized for requiring religious groups to cooperate in providing sterilization and abortifacients.
“This mandate is going to wind up in the Supreme Court,” the South Carolina representative declared.
“We can talk about the politics all we want to. I want to talk about the law,” he told Sebelius. “I want to talk about balancing religious liberty with whatever else you think it's appropriate to balance it with – because you used the word 'balance.'”
“Which of those three tests is the appropriate test to use when considering religious liberty?”
“I am not going to wade into constitutional law,” Sebelius responded. “We are implementing the (health care reform) law that was passed by the Congress, signed by the president, which directed our department to develop a package of preventive health services for women.”
Sebelius said she agreed with the statement that government could not “force certain religious beliefs on its citizens.” When asked why this could not happen, she cited “the separation of church and state,” a phrase not found in the U.S. Constitution.
“It's the Constitution,” Gowdy replied, citing the First Amendment which guarantees the “free exercise of religion.”
Sebelius also agreed with Gowdy's statement that government could not “decide which religious beliefs are acceptable and not acceptable.” This, she acknowledged, is “part of our Constitution.”
“So, before this rule was promulgated,” Gowdy continued, referring to the federal contraception mandate, “did you read any of the Supreme Court cases on religious liberty?”
“I did not,” Sebelius responded.
The representative proceeded to ask the Health and Human Services secretary whether she was familiar with the outcomes of several cases pitting state interests against religious believers' claims under the First Amendment.
Subscribe to our daily newsletter
At Catholic News Agency, our team is committed to reporting the truth with courage, integrity, and fidelity to our faith. We provide news about the Church and the world, as seen through the teachings of the Catholic Church. When you subscribe to the CNA UPDATE, we'll send you a daily email with links to the news you need and, occasionally, breaking news.
As part of this free service you may receive occasional offers from us at EWTN News and EWTN. We won't rent or sell your information, and you can unsubscribe at any time.
Sebelius agreed with Gowdy that the state had a “compelling interest in having an educated citizenry.”
“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?”