In addition to the Supreme Court’s landmark ruling Monday—which found that the HHS mandate places an “undue burden” on the religious freedom of many family-owned businesses—subsequent federal rulings granting temporary relief to the Eternal Word Television Network (EWTN), Wyoming Catholic College, a Cheyenne diocesan school and the evangelical Christian Wheaton College may hold far-reaching, positive consequences for Catholic schools, colleges and other religious nonprofit organizations.
Nonprofit challenges to the HHS mandate differ from the case made by Hobby Lobby and Conestoga Wood Specialties in one important respect: the Obama administration already claims to have alleviated any burden on religious nonprofits by its “accommodation,” which requires non-exempt nonprofits to cooperate in objectionable insurance coverage that is allegedly funded by insurance companies.
Nevertheless, subsequent rulings cite the Supreme Court ruling as sufficient reason to grant temporary injunctions that halt enforcement of the mandate for nonprofits, suggesting that the Burwell v. Hobby Lobby, Inc. decision may have significant implications for the nonprofit cases.
Just hours after the high court’s Burwell v. Hobby Lobby, Inc. decision, 11th Circuit Court of Appeals Judge William Pryor specifically cited the Supreme Court in concluding that, “the Network [EWTN] is substantially likely to prevail on the merits of its claim that the mandate violates the Religious Freedom Restoration Act.”
Mirroring Justice Samuel Alito’s majority opinion, Judge Pryor wrote, “It is neither our duty nor the duty of the United States to tell the Network that its undisputed [religious] belief is flawed.”
Also on the same day of the Supreme Court ruling, the 10th Circuit Court of Appeals granted a stay on enforcement of the HHS mandate to Wyoming Catholic College, St. Anthony Tri-Parish Catholic School, the Diocese of Cheyenne and two Catholic charitable services. The stay reverses a district court judge’s refusal to permit an injunction—claiming the HHS mandate does not impose a substantial burden on the Catholic plaintiffs—although the Obama administration can still demand a hearing to reconsider the injunction while the case is pending. Wyoming Catholic College is recommended in The Newman Guide for its strong Catholic identity.
Additionally, the Supreme Court granted to Wheaton College,an evangelical Christian institution, a temporary stay against the HHS mandate on Monday shortly after the ruling in the Hobby Lobby case, as reported by the Chicago Tribune. Only Justices Stephen Breyer and Sonia Sotomayor recorded their dissent. The Court heard arguments yesterday from the Obama administration and the College about whether to continue the injunction—a determination that could further indicate the Court’s agreement with the concerns of religious educators.
The Obama administration on Wednesday decided to press the issue, interpreting for the Supreme Court its own ruling as favorable to the Administration’s “accommodation.”
But Ed Whelan, president of the Ethics and Public Policy Center, writes at National Review Online, “If the justices in the Hobby Lobby majority had concluded that the accommodation satisfies RFRA, they would have had no reason to grant this temporary relief [to Wheaton College].”
The implications of the Supreme Court decision and the subsequent rulings remain to be seen, but the outlook is hopeful for Catholic educators and other religious nonprofits. Catholic University of America law professor and Becket Fund for Religious Liberty attorney Mark Rienzi wrote in the Washington Post that Judge Pryor’s“decision was the first of what will likely be many opinions applying Hobby Lobby to the non-profit cases.”
Although the Supreme Court explicitly refused to rule on whether the Obama administration’s so called “accommodation” to religious nonprofits would meet the requirement of the Religious Freedom Restoration Act, Rienzi wrote that “much of the Court’s reasoning in today’s decision will apply to the nonprofit cases.”
And that reasoning all points towards another defeat for the Government. In the non-profit cases, the Government has relied almost exclusively on the “attenuation” argument that the Court sharply dismissed today. Going forward, the Government will find it very difficult to claim, as it has in many lawsuits, that the accommodation amounts to “just signing a form.” That reading is only reinforced by the Court’s citation in footnote 9 to its January decision in the Little Sisters of the Poor, reiterating that there were grounds for non-profit institutions to be allowed to opt out of the Mandate.
Today’s decision also undermines the Government’s “least restrictive means” argument in the nonprofit cases. The opinion for the Court makes clear that the Government must explain why it cannot simply pay for the drugs itself. And Justice Kennedy’s concurring opinion states that “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers — burdening one while accommodating the other — when it may treat both equally by offering both of them the same accommodation.” Yet that is precisely what the Government proposes to do to nonprofits: It provides a full exemption to some religious employers (churches) while denying that same exemption to others (such as Little Sisters of the Poor).
The Cardinal Newman Society, after consulting at length with attorneys from Alliance Defending Freedom, wrote in a letter to Catholic school and college leaders that just as the government failed to prove the lack of a substantial burden on Hobby Lobby—as the government was set to charge a crippling fine to the business if it refused to provide contraceptive coverage—the same logic could apply to nonprofits.
In dealing with the question of whether the mandate was the least restrictive means to accommodate the government’s “compelling interest” of ensuring contraceptive coverage, Justice Alito stated, “There are other ways in which Congress or the HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, all the FDA-approved contraceptives.”
The Cardinal Newman Society’s Bob Laird, vice president for program development, pointed out to Catholic schools and colleges the fact that while the Supreme Court did not specifically widen this point to include nonprofit organizations, Judge Pryor, in his EWTN concurrence, wrote, “…RFRA…may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious belief.”
Furthermore, Pryor plainly stated that while the Supreme Court “expressly refused” to decide whether the so-called accommodation satisfied strict scrutiny, “That question is before us in this appeal, and the United States has failed to satisfy that test.”
Matt Bowman, an attorney with the Alliance Defending Freedom, wrote that the high court’s decision is “good news for those of us who will continue fighting Obama care’s abortion-pill mandate.”
But Laird warned that the battle is not yet over, and “there are significant issues to resolve.”
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