Kathleen Sebelius' Constitutional Ignorance

Last week, Health and Human Services Secretary and former Governor of Kansas Kathleen Sebelius testified before the House Education and Workforce Committee about the contraceptive mandate, which many have decried as an unconstitutional intrusion into religious freedom. Her testimony revealed a lack of knowledge regarding the document she is sworn to uphold and protect.

While questioning Sebelius about the mandate, Rep. Trey Gowdy of South Carolina noted that she had previously said:

I believe the proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.

Regarding that comment, Gowdy asked:

There are only three balancing tests that I am aware of when it comes to matters of constitutional significance. There is the rational basis balancing test for economic legislation. There is the intermediate or mid-level scrutiny for gender-related constitutional issues. And then there is the heightened or strict scrutiny when fundamental rights are involved, and given that the fact that I’m sure you concede that religious liberty is a fundamental right, which of those three constitutional balancing tests were you making reference to when you said you “balanced things”?

Her response:

Congressman, I’m not a lawyer and I don’t pretend to understand the nuances of the constitutional balancing tests.

In a telephone interview Friday, Gowdy said that he had looked up a video from last year of Sebelius being questioned on the constitutionality of the individual mandate:

[She used] the exact same words: “I’m not a lawyer.”

Gowdy does not accept the explanation:

You don’t have to be an attorney to check with the solicitor general … or your boss who claims to be a constitutional scholar.

Gowdy also noted that President Barack Obama doesn’t appear interested in adherence to the Constitution:

For a guy who claims to be a constitutional scholar, he sure seems to show disdain for the document.

At the hearing, Gowdy had additional questions for Sebelius:

Do you agree with me that the government cannot force religious beliefs on its citizens?

She replied:

Yes, sir.


And why can they not do that?

After hesitating, Sebelius mentioned “the separation of church and state.”

There is no such language in the First Amendment. During the telephone interview, Gowdy noted:

Separation of church and state is not in the First Amendment, there’s the establishment clause and the free exercise clause — maybe she read Thomas Jefferson’s letter to the Danbury Baptists.

Gowdy said he was more than a little stunned at some of Sebelius’ answers:

My goal was to have a conversation about her mandate without using the word contraception. Because if it’s contraception this week it’ll be something else next week. I was a little surprised she didn’t think it was a constitutional issue, because how could it be anything but? It makes it tough when you’ve sworn to uphold, protect, and defend the Constitution when you don’t know what it says.

Additionally, he said the birth control mandate is a “tawdry, transparent, patently political ploy,” and added that he has both a wife and a daughter and doesn’t “need lectures from her about women’s health.”

Gowdy said he’s not expecting Sebelius to come to an understanding of a citizen’s constitutional rights or the unconstitutionality of Obamacare and the contraceptive mandate:

I’d settle for her understanding our religious liberties are not to be balanced with anything.