Mat Staver Testifies before Congress on Religious Liberty
Washington, DC – Today Mat Staver will testify before the U.S. House Committee on the Judiciary’s Subcommittee on the Constitution and Civil Justice regarding the state of religious liberty in the United States.
“The threats to religious liberty are unprecedented,” Mat Staver will tell the committee. The primary areas of his testimony will focus on religious liberty conflicts involving the sanctity of human life, same-sex marriage, sexual orientation, and gender identity. On the sanctity of human life, the ObamaCare HHS abortion drug and device mandate presents a clear and direct threat to religious liberty. And, laws regarding same-sex marriage, sexual orientation, and gender identity also present clear conflicts with religious liberty. “The ObamaCare abortion mandate, the threats presented by same-sex marriage, and laws regarding sexual orientation and gender identity are unprecedented because they are coercive and force compliance despite sincere religious objections to the contrary,” Staver will tell the committee.
The 2:00 hearing (slightly delayed) will be held in 2141 Rayburn House Office Building. You can view the live webcast of today’s subcommittee hearing or view archived videos after the hearing. All of these links are available on the House Judiciary Committee website, under Multimedia, “Live and Archived Webcasts.” Staver is Dean and Professor of Law at Liberty University School of Law and Founder and Chairman of Liberty Counsel.
Besides Mat Staver, other witnesses include Rev. Barry Lynn, Executive Director, Americans United for the Separation of Church and State; Kim Colby, Senior Counsel, Christian Legal Society; and Gregory Baylor, Senior Counsel, Alliance Defending Freedom.
(Liberty Counsel is an international nonprofit litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono legal assistance and representation on these and related topics.)
Below is the transcript of Mat Staver’s verbal congressional testimony:
TESTIMONY OF MATHEW STAVER
Dean and Professor of Law
Liberty University School of Law
Founder and Chairman
Liberty Counsel Action
The threat to religious freedom has reached unprecedented levels. These threats are more significant and severe than at any time in recent history. My testimony will focus on two areas where this threat has reached a critical point. These involve conflicts between religious freedom and (1) the sanctity of human life, and (2) human sexuality and natural marriage.
The First Amendment protects the rights of every individual to enjoy the free exercise of religion and to be protected against discrimination because of their sincerely held religious beliefs. Unfortunately, in today’s culture, the fundamental right to live according to the dictates of one’s conscience and sincerely held religious beliefs is slowly being eroded. The Patient Protection and Affordable Care Act (“ObamaCare”), combined with the regulations promulgated in support of it, have introduced an unprecedented intrusion into the rights of businesses and organizations to operate consistent with the sincerely held religious beliefs of their owners and officers that life is a gift from the Creator and that providing anything to employees that would destroy life is immoral and inconsistent with Scripture. The same is true of individuals under the individual mandate.
The religious freedom of licensed mental health professionals, minors, and their parents are also under unprecedented assault. Homosexual activists have attempted to enact laws throughout the country that would silence mental health professionals from expressing the truth that an individual can successfully reduce or eliminate unwanted same-sex attractions, behaviors, or identity and live consistent with their sincerely held religious beliefs concerning human sexuality. Those efforts are nothing more than an attempt to censor any viewpoint concerning Scriptural teaching on human sexuality, and they represent one of the greatest assaults on children and families that has arisen in recent times. Parents have a fundamental right to direct the upbringing and education of their children, consistent with their sincerely held religious beliefs, and these efforts are an affront to that fundamental relationship and an assault on religious freedom.
The freedom of religious business owners and organizations is also under unprecedented assault as a result of same-sex marriage, sexual orientation, and gender identity laws spread throughout the country. There are numerous challenges to states’ constitutional amendments and statutes defining marriage as the union of one man and one woman. Judges have been tripping over one another to ignore the rule of law and the will of the people to invalidate the institution of marriage and silence any opposition to their ideology. The destruction of the institution of marriage is not only harmful to society at large, but it has resulted in unprecedented intrusion into the religious freedoms of individuals and businesses that have been attacked for operating their business according to the dictates of their conscience.
SUMMARY OF LIBERTY UNIVERSITY’S CHALLENGE TO OBAMACARE
Liberty Counsel filed the first private party challenge to the Patient Protection and Affordable Care Act on the date that it was signed into law, March 23, 2010. The Complaint was filed on behalf of Liberty University and various individuals raising, among other things, free exercise rights under the First Amendment and the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-1(a)-(b) (“RFRA”).
The Abortion Premium Mandate
An abortion premium mandate originated in Section 1303 of the Affordable Care Act, as codified at 42 U.S.C. § 18023, and has been subsequently implemented in regulations governing Exchanges that were finalized on March 27, 2012.
The accounting scheme laid out in the provisions of Section 1303 was devised to overcome the political hurdle of “taxpayer subsidized abortion.” This became necessary because the ACA allowed health plans to provide elective abortion coverage within the government-subsidized Exchanges, contrary to former federal policy. The ACA breaks with the consistent federal policy since 1996 of prohibiting coverage for elective abortion in subsidized plans offered through the Federal Employees Health Benefits Plan, military insurance through TRICARE, or Indian Health Services. Section 1303 became known as the “Nelson Compromise” because it arose out of an attempt by Senator Ben Nelson, a pro-life Democrat, to find language that would “make it clear that [the healthcare bill] does not fund abortion with government money.” Section 1303 provides:
In plans that do provide non-excepted [elective] abortion coverage, a separate payment for non-excepted [elective] abortion services must be made by the policyholder to the insurer, and the insurer must deposit those payments in a separate allocation account that consists solely of those payments; the insurer must use only the amounts in that account to pay for non-excepted [elective] abortion services. Insurers are prohibited from using funds attributable to premium tax credits or [federal] cost-sharing reductions . . . to pay for non-excepted [elective] abortion services.
ACA, § 1303(b)(2)(B), (C). The implementing regulations for Section 1303 provide that each enrollee in Exchange plans that happen to include abortion coverage is mandated to make “a separate payment” from his own personal funds or payroll deduction directly into an allocation account to be “used exclusively to pay for” other people’s elective surgical abortion. 45 CFR §156.280(e) (implementing ACA, Section 1303(b)(2)(B), as codified at 42 U.S.C. § 18023). This abortion premium mandate applies “without regard to the enrollee’s age, sex, or family status,” 45 CFR § 156.280(e)(2)(i), and with no exemption for enrollees who consider the practice and direct funding of surgical abortion to be a grave moral evil.
An additional provision creates a “land mine” for those who object to paying for abortions, in that the ACA and its implementing regulations effectively instruct insurers to conceal elective abortion coverage and the separate abortion premium. Section (f)(1) of 45 CFR §156.280 provides that notice about a plan’s inclusion of elective abortion coverage be disclosed, not in Exchange advertising, but rather “only . . . at the time of enrollment.”
Minimum Essential Coverage
Other religious liberty issues arise from the definition of the “minimum essential coverage” that is required in order for health insurance to qualify as an approved health plan under the individual or employer mandates. A policy must cover “essential health benefits,” which were defined in the Act generally to include, “at a minimum,” coverage for emergency treatment, prescriptions, mental health care, laboratory, maternity care, pediatric care, and no-cost preventive care services, immunizations, and screenings for infants, children, adolescents and women as described in guidelines supported by the Health Resources and Services Administration (“HRSA”). 42 U.S.C. §18022(b); 42 U.S.C. §300gg-13.
“Preventive Care” Coverage
The Act vested the Secretary of Health and Human Services (“HHS”) with discretion to further define “preventive care” under 42 U.S.C. §18022(b). HHS adopted regulations defining no-cost “preventive care” for women, which includes contraceptive medication, sterilization, abortion-inducing drugs (referred to herein as abortifacients, which include the so-called “emergency” or “morning after” drugs), and intra-uterine devices (“IUDs”). Abortifacients and IUDs often cause abortion and are not merely contraceptives.
SUMMARY OF LIBERTY COUNSEL’S CHALLENGES TO SEXUAL ORIENTATION THERAPY BANS THROUGHOUT THE COUNTRY
Liberty Counsel has been at the forefront of the challenge to the homosexual activists’ attempts to silence licensed mental health counselors who offer counseling on same-sex sexual attractions and behaviors from a religious perspective and address the client’s sincerely held religious beliefs in that counseling. Homosexual activists throughout the country have been advocating for bans on so-called sexual orientation change efforts counseling (“SOCE”), and homosexual legislators have been introducing them in numerous state houses. Only two of those bans have successfully passed, California and New Jersey, and Liberty Counsel has led the charge to defeat these grossly unconstitutional laws. In both states, Liberty Counsel brought federal lawsuits against these SOCE prohibitions..
SEXUAL ORIENTATION CHANGE EFFORTS
California SB1172 and New Jersey A3371 both prohibit any counsel of a minor under any circumstances to reduce or eliminate unwanted same-sex sexual attractions, behavior, or identity. Counselors may affirm but may not offer counsel, and clients may not receive counsel, to reduce or eliminate unwanted same-sex sexual attractions, behavior, or identity. The language of both bills is virtually identical, with only some minor variations. SB1172 states that “[u]nder no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.” Cal. Bus. & Prof. Code § 865.1. SOCE counseling is defined as “any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex.” Cal. Bus. & Prof. Code § 865(b)(1). However, SB1172 provides that [s]exual orientation change efforts does not include psychotherapies that: (A) provide acceptance, support, and understanding of a clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.
Those who actually engage in SOCE counseling simply engage in the same type of client-centered “talk therapy” as every other form of modern mental health counseling. It is simply two people sitting in a room discussing the clients’ feelings, behaviors, desires, and goals, and for most SOCE counselors, helping the client to achieve their goal of conforming their attractions, behaviors, and identity to their sincerely held religious beliefs.
SOCE PROHIBITIONS AND RELIGIOUS FREEDOM
The focus and aim of those who have targeted SOCE counseling, because of its message, and legislators’ principal reliance on those hostile to SOCE counseling for these laws reveal why these laws are a gross intrusion into the religious freedom of minors and their families.
ATTACKS ON NATURAL MARRIAGE AND FAMILY
The Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 1521 (2013), striking down Section 2 of the Defense of Marriage Act (“DOMA”) has created a firestorm of activist assaults in nearly every state that recognizes the traditional and only definition of marriage.
Marriage between one man and one woman is a public good that is best for society, particularly its children and future generations.
EFFECTS OF SAME-SEX MARRIAGE, SEXUAL ORIENTATION, AND GENDER IDENTITY LAWS ON RELIGIOUS FREEDOM
The recognition of same-sex marriage, and laws including sexual orientation and gender identity, have also led to calamitous results in the social arena, whereby those who claim simply to want equality want nothing more than to impose their viewpoint on others who have religious beliefs opposed to their lifestyle choice. The end goal in this assault on the family and religious freedom is about silencing opposition and forcing those who disagree with a homosexual lifestyle and with the notion of same-sex marriage out of the marketplace for their beliefs.
In a recent case in New Mexico, Elaine Photography LLC v. Willock, 309 P.3d 53 (N.M. 2013), a Christian photographer who owned a business was subjected to a human rights complaint for declining to exercise her talents and personal skills to lend her stamp of imprimatur on a same-sex wedding ceremony. When two women sought to employ her services for their same-sex “marriage” ceremony, the photographer informed them that she does not photograph any image or event that violates her sincerely held religious beliefs. The owner of Elaine Photography informed the homosexuals that she was certainly willing to provide services to them for any number of things, but that her sincere religious beliefs simply prohibited her from providing services for a ceremony that violates her beliefs.
The Elaine Photography case reached the New Mexico Supreme Court, which unbelievably affirmed the decision of the Human Rights Commission, stating that the business had no right to refuse services based on the owner’s sincerely held religious beliefs. In a concurring opinion, Justice Bosson said that there is no doubt that individuals can be “compelled by law to compromise the very religious beliefs that inspire their lives,” and that “[a]t its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others.” Id. at 80 (Bosson, J., concurring).
Additionally, in Colorado, the owner of Masterpiece Cakeshop, Inc. was forced to compromise his religious beliefs by using his personal skills and talents to create a wedding cake for a same-sex marriage ceremony, which is fundamentally inconsistent with his sincerely held religious beliefs.
In Oregon, Sweet Cakes by Mellissa was similarly subjected to a civil rights complaint for merely following her sincerely held religious beliefs. The Oregon Bureau of Labor held that the owners had violated Oregon civil rights laws by refusing to perform services for the same-sex wedding. The business has since closed its doors, being forced out of the marketplace simply for the exercise of their sincerely held religious beliefs.
In New Jersey, even a religious organization affiliated with the United Methodist Church was forced to rent the facility to homosexuals for their ceremony that was fundamentally at odds with the teaching of the Bible and the Methodist Church with which the group was affiliated.
Supporters of Proposition 8 in California, which passed by significant margins even in California, have also been assaulted, and had their livelihoods destroyed for simply participating in or supporting the traditional definition of marriage. A recent prominent example is that of the Mozilla Chief Executive Officer being forced to resign for donating money to a campaign to defend traditional marriage in California. Brendan Eich contributed $1,000 in 2008 for the California marriage campaign, and when it was revealed in 2014, the homosexual activists pushed him from the marketplace.
In Massachusetts, Catholic Charities of Boston lost its state certification for refusing to provide adoption services to same-sex couples.
While these examples are certainly illustrative of a serious problem, unfortunately this is just the tip of the iceberg of the assault on religious freedom. The list of attacks on religious individuals and organizations for their sincere religious convictions that homosexuality is unnatural and sinful is potentially limitless. That this is true is beyond peradventure. As the above cases make abundantly clear, it is also true that activists with an agenda will stop at nothing to drive any dissent out of the marketplace of ideas and out of the commercial marketplace. This is a zero sum game, and the implications for religious freedom are staggering.
It is imperative that Congress take decisive action to protect the religious freedom of individuals and organizations. The same-sex marriage, sexual orientation, and gender identity agenda is eroding the most cherished of all liberties – the right to live according to the dictates of one’s conscience without overbearing actions of the government.
I urge Congress to act to protect religious freedom. The time to act is now. Ernest Istook, The Real Status Quo on Abortion and Federal Insurance, The Heritage Foundation (November 11, 2009), available at http://blog.heritage.org/2009/11/11/the-real-status-quo-on-abortion-and-federal-insurance/  Everton Bailey, Jr., Gresham Bakery Finding Buyers, Backers Amid Wedding Cake Controversy, OregonLive (Jan. 20, 2014), available at http://www.oregonlive.com/gresham/index.ssf/2013/02/gresham_bakery_finding_buyers.html  Alistar Barr, Mozilla CEO Brendan Eich Steps Down, Wall Street Journal (Apr. 3, 2014), available at http://online.wsj.com/news/articles/SB10001424052702303532704579479741125367618  Boston Catholic Charities Stop Adoptions Because of Gay Parent Law, FoxNews.com (Mar. 10, 2006), available at www.foxnews.com/story/03/10/boston-catholic-charities-stop-adoptions-because-gay-parent-law/ (last visited June 9, 2014).
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