In Defense of Our First Freedom
In his classic treatise, Democracy in America, the French political thinker Alexis de Tocqueville observed, “Religion in America ... must be regarded as the foremost of the political institutions of that country; for if it does not impart a taste for freedom, it facilitates the use of it.” In surveying the United States, Tocqueville understood quickly that the practice of religion was essential to the moral fabric of this country and to its continued success as a democracy.
Yet in a country that was founded by individuals eager to escape religious persecution, the early years of the 21st century have given way to a newfound hostility toward religion that threatens the very principles upon which America was founded or, as the U.S. Conference of Catholic Bishops described it, “our first, most cherished liberty.”
It is well-known that numerous individuals, businesses and organizations have challenged the U.S. Department of Health and Human Services mandate requiring insurance coverage for contraception and abortifacients. But there have also been many lesser-known cases that evidence a disturbing trend in both federal- and state-level infringements on religious freedom and individual conscience rights.
REFUSING A BITTER PILL
Dr. Luke Vander Bleek, a member of St. Mary’s Council 3916 in Morrison, Ill., received a foretaste of what many private business owners are now experiencing in light of the HHS mandate. On April 1, 2005, then-Gov. Rod Blagojevich issued an executive order requiring all pharmacists to provide emergency contraception (commonly referred to as “the morning-after pill”) on demand.
“I first thought this was a public stunt, and he’s doing this to cater to the crowd that had helped elect him,” recalled Vander Bleek. “He was a very pro-abortion-minded governor. I just didn’t think this would have any teeth until a few weeks later when we received the first notice, basically saying that this rule is in effect and you will need to comply. If you don’t, we’ll revoke your license.”
In 1997, Vander Bleek became co-owner of Fitzgerald Pharmacy. Less than a decade later, he was faced with a grave choice: adhere to his conscience and refuse to comply, or potentially risk the end of his pharmaceutical career. For Vander Bleek, the choice was clear. He immediately contacted his personal attorney, a fellow Knight of Columbus. Realizing that this was going to be a much larger issue than his practice could take on, the attorney advised Vander Bleek that he would look into the matter and seek out some more robust help. Vander Bleek, along with his co-owner Glenn Kosirog, were put into contact with Americans United for Life, a pro-life law firm and advocacy group that has received support from the Supreme Council.
AUL was the first to file suit. Gov. Blagojevich responded to the immediate protests of the rule by stating that “pharmacists with moral objections should find another profession” and that as part of their duties, they “must fill prescriptions without making moral judgments.”
Mark Rienzi, a law professor at The Catholic University of America and senior counsel of the Becket Fund for Religious Liberty, took over as lead counsel of the case for Vander Bleek and Kosirog in 2006. Suit was filed under the Illinois Health Care Right of Conscience Act, which provided health-care professionals with protection from punishment for declining to offer services that conflicted with their religious convictions. According to Rienzi, “Most states have an abortion-specific protection for medical professionals to exempt, but we have 50 states, and they all do things differently. Fortunately, the Illinois Act is very strong.”
In 2008, the case finally reached the Illinois Supreme Court, which granted standing for the pharmacists to challenge the governor’s rule. Once the case went to trial, the Illinois government was unable to prove that there was compelling interest to force pharmacists to violate their conscience even lacking evidence of a single individual who was unable to gain access to emergency contraception from some other provider. As Rienzi noted, “The government had no evidence of a single person that could not get the drug. There was no reason to force these guys to get involved. This case showed that some of the big, loud claims of the government could not trump individual freedom.”
Eventually the case went to the Circuit Court, which ruled that the law was invalid. On Dec. 10, 2012, seven years after the battle began, Vander Bleek and Kosirog were granted a final victory to continue their pharmaceutical practice without having to sell emergency contraception.
In reflecting on the case, Vander Bleek feels motivated by the victory and is hopeful that it will encourage others, particularly his fellow Knights, to stand up for their rights. “Every one of my brother Knights ought to ask themselves, ‘Am I being called here to stand up?’ In my case, I felt like my name was being called, and it was time to do something.”
STANDING UP FOR TRUTH
About 250 miles south, in Highland, Ill., another Knight has recently taken up a similar challenge. Cyril “Pete” Korte, a member of Highland Council 1580 and president of Korte & Luitjohan Contractors Inc., founded his construction company as a small venture in 1958, installing gas lines for the city of Highland. Since then, Korte & Luitjohan has grown to employ more than 80 permanent workers, with most construction projects providing jobs to between 90 and 110 workers on any given day. Recognizing that the HHS mandate would require that he violate tenets of his Catholic faith, Korte sought judicial intervention.
The case eventually made its way to the Seventh Circuit Court of Appeals, which ruled in favor of Korte, who was represented by the American Center for Law and Justice. The case also set an important precedent for similar cases including the notable Hobby Lobby case. According to Edward White, senior counsel with the ACLJ, “This is the first appellate court decision that says the individual owner and the company they own each has separate rights. … We now have a binding court decision that evidences certain rights and violations, and this should be helpful for others in similar situations.”
The Seventh Circuit case brought temporary relief to Korte & Luitjohan Contractors and that victory was further cemented by the Supreme Court’s 5-4 June ruling in the Hobby Lobby case, which said that closely held corporations, such as Korte & Luitjohan, are exempt from having to comply with the mandate under the Religious Freedom Restoration Act. In his opinion for the majority, Justice Samuel Alito Jr. wrote, “HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.”
Korte believes that these cases will serve as a call to action for other Christian business owners to exercise their own rights.
“The worst evil in any day and age, in any place, is to stand by and do nothing in the face of injustice or poor judgment,” he said. “My hope is that all good citizens and small business owners, especially Christians, stand up for truth and for our rights.”
TAKING TO THE STREETS
At age 64 when most people are considering retirement Eleanor McCullen began a new career as a volunteer sidewalk counselor outside of abortion facilities. For more than a decade, McCullen has been a regular presence outside of Planned Parenthood on Commonwealth Avenue in Boston. During these years, she has counseled scores of women against abortion and offered assistance in all forms: emotional, financial, physical and spiritual. Yet in 2007, a Massachusetts state law was passed that imposed a 35-feet buffer zone outside of abortion facilities, which threatened McCullen’s ability to carry out her mission. Now, at age 77, McCullen has found herself as the victorious plaintiff in a unanimous 9-0 Supreme Court ruling, which concluded that “the buffer zones burden substantially more speech than necessary.”
Like Vander Bleek in Morrison, Ill., McCullen was represented by Mark Rienzi. According to Rienzi, “What’s wrong with the [Massachusetts] law is that the government is taking a piece of public sidewalk and allowing abortion clinics to say whatever they want, while not allowing other folks who want to have a peaceful conversation to do the same.”
According to McCullen’s friends and critics alike, her approach to sidewalk counseling is a non-violent, peaceful one that is orderly and undisruptive.
“We offer a story of love, gentleness, and compassion,” she said. “There’s a myth about sidewalk people that we’re angry…. I just want to say that we can help you. We have resources. We have a lot of ways in which we will support you with love.”
Unfortunately for McCullen, the case was plagued by the usual politics that dominate the abortion debate. Yet, as McCullen notes, “This is not about abortion. It’s about our First Amendment rights being taken away. I should be able to say to you, ‘I can help you.’ I shouldn’t have to be 35 feet away. This is America. Once you compromise on one little thing, it just opens up a gateway to other violations of freedom.”
In January, the case was heard before the U.S. Supreme Court, with all of the justices appearing to show great interest in the case. “I thought all the justices were fair and honestly grappling through the issues,” noted Rienzi.
Prior to the court’s June ruling, McCullen remained optimistic.
“Either way, we’ll still continue in this work,” she said at the time. “Even if we lose, we have still won because this has provided me a chance to put a good and positive face on sidewalk counselors.”
Following the court’s ruling, McCullen has pressed on with her work, though she has been met with new resistance from abortion advocates.
“The unanimous decision makes clear that the First Amendment is for everyone, including peaceful pro-life sidewalk counselors,” Rienzi said. “The government has ample tools to prosecute anyone who engages in misbehavior tools the state hasn’t had occasion to use for decades and the court told them to use those tools instead of trying to imprison peaceful speakers like Eleanor McCullen.”
Both the McCullen case and the Hobby Lobby case, he added, show that the Supreme Court takes First Amendment rights seriously. The government cannot restrict those rights without “real evidence of serious problems that cannot be addressed in other ways,” he said.
While the legal landscape for religious believers may appear bleak at times, religious liberty is being upheld and protected by the courts in a majority of cases, and the Christian plaintiffs are offering a consistent witness of hope.
As these vindicated warriors Vander Bleek, Korte and McCullen remind us, their individual causes represent principles far greater than themselves.
“If not me, who? If not now, when?” asked Vander Bleek. “That’s the duty of the citizen: to stand up to the government. Not only is it your option and your right as an American citizen to express your religion in the public square, it’s a responsibility.”
CHRISTOPHER WHITE is a columnist for Catholic Pulse.com and the co-author of Renewal: How a New Generation of Faithful Priests and Bishops is Revitalizing the Catholic Church (Encounter Books, 2013).