In March of last year, the federal government returned eagle feathers to Lipan Apache tribal leader Robert Soto – feathers that undercover agents had seized from him ten years ago.
James Madison, the “Father of the Constitution” and a staunch defender of religious liberty, would have smiled.
Pastor Soto and others have filed a friend-of-the-court brief in support of Priests for Life vs. HHS, and the other six cases currently before the U.S. Supreme Court, challenging the Obama administration’s HHS mandate. That brief recounts how the Lipan Apache Tribe’s religious liberty rights were violated by the government a decade ago when federal authorities took the tribe’s eagle feathers.
The feathers were not decorations or keepsakes – they held deeper meaning. The Lipan Apaches include eagle feathers in their worship services.
Normally, using such feathers for Native American religious observances would not be a problem. While federal laws prohibit the possession of any part of a bald or golden eagle, exemptions are granted “for the religious purposes of Indian tribes.”
So why, you may ask, did the government confiscate the eagle feathers if the law allows Native American tribes to possess them for religious purposes?
The answer is that the feds hadn’t officially designated the Lipan Apaches as an Indian tribe. Although the State of Texas had previously officially recognized the tribal group and these Native Americans had lived in Texas and Northern Mexico for over 300 years, the federal government didn’t acknowledge them. And the government argued that if it didn’t view them as an official tribe, they had no religious rights to possess eagle feathers.
Bureaucrats, in effect, were telling Pastor Soto that he was a disfavored practitioner of his faith. Officials in Washington, DC were deciding who was a valid Native American and who was not.
So it is today with the HHS mandate. Just as the federal government thought that the Lipan Apaches weren’t “Indian enough,” it now thinks that Priests for Life, the Archdiocese of Washington, and others aren’t “Catholic enough.”
The Department of Health and Human Services, as part of Obamacare, has decreed that religious non-profit groups such as the one I lead, Priests for Life, must be complicit in the provision of abortifacients, contraceptives, and sterilization to our employees. It has granted exemptions to Churches, but not to religious non-profits like Priests for Life who serve those Churches. It exempts Catholic Charities of Erie, because it shares the same corporate structure as that diocese, but not Catholic Charities of Pittsburgh, which is incorporated separately from its diocese. What’s more, the government has told us that what we regard as grave sin really isn’t.
As with the case of Pastor Soto and the Lipan Apaches, the government’s treatment of religious non-profit groups with regard to the HHS mandate is not how America is supposed to work. The government does not get to approve or disapprove of anyone’s sincerely held religious beliefs, much less begin making distinctions about the protection of religious liberty based on tax code issues.
Our Founders rebelled at the notion that the state is the arbiter of faith. They left such ideas behind when forming a new nation. James Madison, one of the principal architects of the Constitution, wrote in 1785, “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”
Madison did not regard the right to religious liberty to be absolute and neither do our courts. We still have to pay our taxes, for example, regardless of any religious objections.
But for the government to place a substantial burden on the practice of one’s religion, it needs to pass a rigorous test. The Religious Freedom Restoration Act (RFRA) establishes the test in our case before the Supreme Court.
Passed almost unanimously by Congress in 1993 and signed into law by President Bill Clinton, RFRA holds that the federal government may not place a substantial burden on religious belief unless that burden serves a “compelling government interest” and the government uses the “least restrictive means” to pursue it.
The Fifth Circuit Court of Appeals found that the government failed to meet the RFRA standards when it confiscated the Lipan Apaches’ sacred feathers. Federal authorities satisfied neither the “compelling government interest” nor the “least restrictive means” test. The case was sent back to a lower court and the feathers were later sent back to Pastor Robert Soto.
Now the Supreme Court, in oral arguments on March 23, will hear Priests for Life and dozens of other petitioners present our case against the HHS mandate. We will declare that we are “Catholic enough” and “Christian enough,” just as the Lipan Apaches were “Native American enough,” to be treated the same under the law as our co-religionists whom the government exempts from the mandate. Further, we will state that the government can – and already does – exercise other means to make abortion-causing drugs available to women without hijacking our health insurance plans, over our religious objections, to be part of its scheme.
There are reasonable answers to the HHS mandate dispute. We are hopeful and prayerful that after over four years of litigation, the Supreme Court will allow religious non-profit groups to exercise “the conviction and conscience” of which James Madison wrote.