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Circuit Courts Strike Blows Against Religious Liberty

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This week, various appeals courts across the country ruled on whether religious institutions should be exempted from the Obamacare contraception mandate. The court decisions make it all but inevitable that the Supreme Court will be forced in the next few months to consider whether religious institutions must cover contraception in violation of their religious freedom.

On Tuesday, the Seventh Circuit Court of Appeals ruled that Notre Dame could not reject healthcare coverage of contraception under the Obamacare contraceptive mandate. In fact, the court went further, ruling that the Religious Freedom Restoration Act (RFRA) could not shield Notre Dame because contraceptive use was a “compelling state interest” overcoming the burden placed on religious Americans.

Judge Posner, writing for a majority on the Seventh Circuit, found that the regulation required that if Notre Dame signed an exemption form, its insurers would have to cover the contraceptives instead. That, said Posner, avoided violations of religious liberty, even though it effectively meant that those attending Notre Dame would be given contraception because they attended Notre Dame. “The regulations thus sought an accommodation between the secular interests that had motivated the requirement to provide contraceptive services to women free of charge and the interests of religious objectors,” wrote Posner.

Posner rejected Notre Dame’s argument that because “of its contractual relations with the two [health insurance] companies, which continue to provide health insurance coverage and administration for medical services apart from contraception as a method of preventing pregnancy, Notre Dame claims to be complicit in the sin of contraception.” He wrote that Notre Dame was not a “conduit” for contraceptive use, and that its beliefs had not been violated–an odd argument, given that Notre Dame believes its beliefs have been violated. Posner claims that according to the standard promulgated by Notre Dame, no insurance scheme devised by the government that involved employment at Notre Dame could allow contraceptive coverage.

Judge Flaum’s dissent rips into Posner’s opinion:

While Notre Dame is no longer obligated to pay for contraceptive services for its employees, it’s apparent to me that, at a minimum, the ACA thrusts Notre Dame into a facilitator’s role that, Notre Dame says, violates its religious beliefs by forcing it to serve as a continuing link between Meritain and the contraceptive services it provides to Notre Dame’s employees.

Meanwhile, the DC Circuit Court of Appeals denied an appeal from Priests for Life and other Catholic educational institutions a rehearing on a similar case. The religious groups said that by being forced to sign an exemption, and therefore causing the government to provide contraceptive coverage, their religious liberty had been violated. Like the Seventh Circuit, the DC Circuit rejected that argument, arguing, “In the case of women who get their insurance coverage through an accommodated employer, the law requires insurers to offer the women contraception under a separate plan–completely segregated from the objecting employer’s plan and its payments.”

Judge Janice Rogers Brown, joined by one of her colleagues, dissented eloquently:

In a sense the government now fills the role formerly occupied by the church, embodying the hope of human well-being. … The panel conceded Plaintiffs sincerely “believe that the regulatory framework makes them complicit in the provision of contraception.” [citation omitted] That acknowledgement should end our inquiry into the substance of their beliefs. Viewed objectively, Plaintiffs’ belief that the acts the regulations compel them to perform would facilitate access to contraception in a manner that violates the teachings of their Church may “seem incredible, if not preposterous,” to some people. [citation omitted] However, this Court is neither qualified nor authorized to so scrutinize any religious belief. The panel trespassed into an area of inquiry Supreme Court precedent forecloses. … Under the panel’s analysis, it seems no claim of substantial burden may prevail where the religious significance of conduct under scripture as interpreted by a faith tradition differs from the legal significance of that conduct under the laws of the United States as interpreted by federal judges.

In other words, federal judges trump religious beliefs, which cuts against the entire purpose of the RFRA and the First Amendment. The dissent concluded, “Make no mistake: the harm Plaintiffs complain of–and the harm this Court therefore is called to assess–is from their inability to conform their own actions and inactions to their religious beliefs without facing massive penalties from the government.”

The Supreme Court will likely be forced to take up the issue in short order. Given the fact that Justice Anthony Kennedy provided the swing vote in Hobby Lobby, the Supreme Court is unlikely to rule with the religious institutions, thereby forcing those institutions to cease providing health insurance entirely in reaction. Obamacare strikes again.

Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.


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