Had someone told Benjamin Franklin in 1787 that the newly-drafted U.S. Constitution would one day give rise to a regime that tried to force a group of religious dissenters to act against their will by paying for surgeries that purportedly transformed human beings from one sex to another, he probably would have amended his oft-quoted statement about the sort of government he and the other Framers had created.
“A republic,” he might have remarked instead, “but you will lose it.”
On Monday, a federal judge in North Dakota brought us one step closer to restoring the republic when he ruled that the Biden administration could not trample freedom of conscience by requiring Christian employers to pay for “gender transition” treatments, including surgeries.
Daniel M. Traynor, U.S. District Judge for the District of North Dakota, sided with the Christian Employers Alliance.
In so doing, Traynor prevented the Equal Employment Opportunity Commission and the Department of Health and Human Services from interpreting federal law in a way that forced CEA members to violate their religious beliefs.
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The EEOC enforces Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of sex. In an unconscionable 2020 opinion, the Supreme Court ruled that Title VII’s prohibition also covered “sexual orientation” or “gender identity.”
Significantly, however, the Supreme Court offered no guidance on religious exemptions. Under the Religious Freedom Restoration Act of 1993, federal and state governments may impose no substantial burden on a person’s free exercise of religion unless those governments can prove that said burden constitutes the “least restrictive means of furthering [a] compelling governmental interest.”
Meanwhile, HHS enforces Section 1557 of the 2010 Patient Protection and Affordable Care Act, commonly referred to as “Obamacare.” That section prohibits discrimination on the basis of sex, including gender identity, in “covered health programs or activities.”
In sum, the Biden administration’s EEOC and HHS interpreted those anti-discrimination provisions broadly. They argued that such provisions authorized the federal government to impose “gender transition” coverage mandates on Christian employers.
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Traynor’s formidable opinion made it clear, however, that those agencies do not have that kind of power.
“As noted in its Order Granting Preliminary Injunction, this Court determined that if CEA had to comply with these mandates, its members would have to violate their sincerely held religious beliefs which is an impermissible exercise under the First Amendment and RFRA,” the judge wrote.
Traynor also described those relevant beliefs. For instance, CEA members believe that “male and female are immutable realities defined by biological sex and that gender reassignment is contrary to Christian Values.”
As for the RFRA’s “substantial burden” threshold, the judge rejected the agencies’ “vague promise to comply” with the 1993 law.
Furthermore, the government cannot trample religious liberty “on a case-by-case basis.” That, Traynor wrote, would hardly qualify as “the least restrictive means” to achieve a “compelling interest.”
Finally, Traynor issued a strong statement on gender ideology and religious liberty under the law.
“The Court further DECLARES HHS’s interpretation of Section 1557 that requires CEA or its present or future members … to perform or provide insurance coverage for gender-transition procedures violates their sincerely held religious beliefs without satisfying strict scrutiny under RFRA,” he wrote.
Matt Bowman of the Alliance Defending Freedom, the attorneys who represented CEA, applauded the ruling.
“All employers and healthcare providers, including those in the Christian Employers Alliance, have the constitutionally protected freedom to conduct their business and render treatment in a manner consistent with their deeply held religious beliefs,” Bowman said according to the ADF website.
“The employers we represent believe that God purposefully created humans as either male or female, and so it would violate their religious beliefs to pay for or perform life-altering medical procedures or surgeries that seek to change one’s sex. The court was on firm ground to stop the administration from enforcing these unlawful mandates that disrespect people of faith,” he added.
Christian Employers Alliance President Shannon Royce expressed gratitude and relief.
“We are overjoyed our members will not have to choose between the biblically based employee benefits and quality healthcare they provide, and the threat of federal enforcement and massive costs for practicing their faith,” Royce said.
The mental exercise at the beginning of this story asked readers to imagine Franklin’s reaction to these circumstances.
The famous Founder, of course, committed his own share of moral transgressions, as we sinners often do. Likewise, he spent a good deal of time among aristocrats in pre-revolutionary France. What he might have thought about men pretending to be women, therefore, we can only guess.
Of Franklin’s determination to keep the U.S. government small and inoffensive to its citizens, however, we have no doubt. For instance, at the Constitutional Convention, Franklin proposed that the president should serve without pay.
Thus, we can well imagine what he might have thought about the federal government forcing citizens to pay for anything.
Furthermore, that same mental exercise made reference to “religious dissenters.”
In Franklin’s day, that phrase almost always meant Christian denominations that did not adhere to the established church’s orthodoxy. But the Founders made “dissent” irrelevant on a national level by denying Congress power to establish an official church.
In short, Franklin and his contemporaries would be astonished to find Christians in general classified as “dissenters.” For that is, in effect, what all of these laws and judicial opinions signify in the end.
A non-Christian moral view has come to dominate civil society. Thus, to exist in that society, Christians require special exemptions from laws rooted in that non-Christian view.
In other words, while we applaud Traynor’s ruling, we should not forget that it amounts to a special exemption. The non-Christian moral view remains dominant in our institutions and culture.
Time will tell whether we can restore the republic under such conditions.
