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.
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?”
Sebelius said she was unaware of this outcome as well. “The religious group won,” Gowdy told her.
(Story continues below)
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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.”
“Is there a legal memo that you relied on?” Gowdy asked. “At least when Attorney General Holder made his recess appointments, there was a legal memo that he relied on. Is there one that you can share with us?”
“Attorney General Holder clearly runs the Justice Department and lives in a world of legal memos,” Sebelius responded, saying she “relied on discussions.”
South Carolina is involved in two pending lawsuits bearing on the Obama administration's health care reform law and the accompanying contraception mandate.